Archive for category Medical and Work Capability Assessments

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

 
 

2 Comments

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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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

 
 

PLEASE FIND HERE A PDF COPY OF THE TEXT OF THIS WHOLE POST, WHICH MAY THOUGH ONLY CONTAIN LINKS THAT CANNOT DIRECTLY OPEN OTHER DOCUMENTS. YOU MAY HAVE TO COPY THEM INTO YOUR GOOGLE, BING OR OTHER SEARCH ENGINE, TO FIND THE CORRESPONDING INFO VIA THE WEB:
msds-selective-poor-responses-to-new-o-i-a-requests-post-nzsjb-upd-27-11-15

To access info found only via links, it may be easier to go through the online post above and click the relevant links!

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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 copies of my medical files from both Dr Xxxxx Txxxxxx and Dr Dxxxx Xxxxxxx, it is evident, that Dr Xxxxxxx never sent a copy of his assessment and report to my own GP, as no record at all has been kept and found on file with either one of them. This is a serious breach of the guidelines set out in the Guide for Designated Doctors, where on page 13 Work and Income (and MSD) expect a designated doctor to keep any medical information on file, that has material impact on the formulation of his/her opinion. Consequently my own doctor was never informed about Dr Xxxxxxx’s diagnosis, assessment and final report.

7. Contrary to the strong recommendation and thus expectation by Work and Income at the bottom of page 13 (and the top of page 24) of the Guide, Dr Xxxxxxx never discussed his assessment and report with me. He therefore acted very negligently and made no effort to apply a fair level of transparency in the matter, leaving me as the assessed person totally in the dark about his considerations and recommendation.

 

‘Non-treating doctors performing medical assessments of patients for third parties’, an official statement by the ‘Medical Council of New Zealand’ from December 2010:

Naturally one would expect that Dr Xxxxxxx, as a general practitioner registered with the Medical Council of New Zealand (under the vocational scope of practice), would have been informed of – and been following – the guidelines in the document ‘Non-treating doctors performing medical assessments of patients for third parties’.

It appears that Dr Xxxxxxx did not follow guidelines given in that document. Dr Xxxxxxx indeed failed to adhere to the statement’s recommendations and expectations:

1. Dr Xxxxxxx failed to inform me properly about the way he intended to conduct the examination, my right to object to it being conducted by him, whether in part or wholly. He did not comply with recommendations and expectations as outlined under point 10 of the statement. During his “interrogation style” interview, he did not give me sufficient opportunity and space to explain matters of my concern, which actually related to aspects of my complex health situation, conditions I suffered from and what the disabilities I have meant in view of coping with various experienced challenges, including problems with accommodation, legal issues to be resolved and a hypothetical return to some form of work. Instead I felt being rushed through an overly enforced, almost coercive kind of questioning that almost exclusively revolved around work, my long term benefit dependency, my ability to work, my view towards past types of work and why I had reservations to resuming alternative work.

Dr Xxxxxxx did not explain to me the different role that he was performing, which was clearly different to that one of my doctor. Indeed no explanations were given from the start of the examination, only that he and I were aware that it was to be completed for Work and Income. As a client of Work and Income I was then not at all aware about the specific role of a designated doctor, and I had no knowledge of the expectations Work and Income has from designated doctors (as outlined in their “Guide” for them).

At NO time during the examination was I informed if my right to withdraw from it, and I was also not given any information about any policy the third party he conducted his assessment for would follow.

2. Most certainly Dr Xxxxxxx totally ignored points 13 and 14 in the statement, as he refused to take photo copies of the specialist counsellor and assessment documents that I offered to him, which was highly relevant for his considerations. He showed no or little interest in meeting the expectations and recommendations under those paragraphs of the statement issued by the Medical Council.

3. Also did Dr Xxxxxxx make recommendations to Work and Income, which resulted in a radical deterioration of my mental and emotional well-being, even leading to me considering self harm or suicide, which is well documented in file notes kept by Work and Income. He dismally ignored the expectations under point 12 of the statement. His assessment and report were clearly not made by applying due diligence and abiding to accuracy, objectivity and true evidence. Instead there are signs of bias and speculative presumptions, which may have been caused by information about an “assault” I was alleged to have committed in the host doctor report. Work and Income was fully relying on Dr Xxxxxxx’s unproven, flawed, biased and incorrect recommendations, and in due course sent me 5 to 6 letters within 4 days, to prepare for training and work. At that stage I had not even learned about their decision based on Dr Xxxxxxx’s assessment, to transfer me onto the Sickness Benefit. On 16 July 2010 I felt harassed and was driven to despair, where I indicated in an upset state, on the phone to a call centre staff member, that I “may as well make an end to it all”.

This was interpreted as an intention to commit self-harm or suicide, and it led to Work and Income calling the police, who threatened to kick in my door, and who finally took me to the Mt Wellington station for a forced assessment by clinical crisis team staff from Cornwall House of the Mental Health Services of the A.D.H.B..

For months my health would deteriorate, for fear of being intimidated, treated unfairly, unreasonably and feeling unable to cope. This led to many relapses on alcohol and worsening health. An already difficult counselling relationship to a counsellor at XXXX Xxxx deteriorated radically, leading to a breakdown and me having to terminate it.

I was forced to take an appeal under section 53A of the Social Security Act 1964 to a Medical Appeal Board, and as their decision was also not meeting legal and other requirements, I had to take the matter to the High Court at Auckland. After struggling to interest a lawyer and to also get a grant for legal aid, I was in Xxxxxx 2011 applying for judicial review proceedings. Only over 10 months of resulting settlement negotiations could it just weeks ago be achieved, that I was finally offered a settlement solution that was reasonably acceptable. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. (Note: Original text edited and partly replaced for legal reasons!)

Dr Xxxxxxx is responsible for a grave escalation of harm, and his actions resulted in a degree of harm to my mental health, general well-being and financial circumstances also, which should make him liable for damages under the laws of New Zealand.

4. Point 6 in the statement does raise the question of suitable qualification and whether there may be any conflict of interest an assessing medical practitioner may have. It leaves the decision-making about this up to the practitioner to make. Yet it is firmly advising a practitioner, who may be approached by a third party to conduct and assessment, to decline a referral, should the practitioner not consider her-/himself suitable for conducting the assessment.

Given the fact that Dr Xxxxxxx is a qualified general practitioner with specialisation in obstetrics and gynaecology, he should have been aware of the fact that he was not suitably qualified to assess me as a person with mental illness and disabilities that lie outside his own scope of practice. Therefore the serious question arises again, why he did proceed with the assessment of a person, who clearly has illnesses and disabilities that lie outside his scope of practice. It appears that Dr Xxxxxxx followed either very poor judgment, or he unjustifiably regarded himself as sufficiently qualified, experienced and competent to make an assessment about a mental health sufferer with complex conditions, including XXX, addiction and alcohol dependence.

In any case, the results of Dr Xxxxxxx’s assessment and report do in this regard speak for themselves, as he failed badly in conducting and completing a competent assessment upon a flawed examination. He did not follow sound judgment and thus failed badly in regards to the recommendations and expectations of this statement.

5. Naturally Dr Xxxxxxx also failed in meeting the expectations set in him under point 5 of the same document and statement published by the Medical Council. He failed to provide an evidence based, correct and objective assessment and recommendation. Submissions form my own doctor; my own verbal submissions and letters of evidence from other specialist medical professionals were simply ignored or held as irrelevant. Such conduct is not meeting the standards of professional conduct.

6. As the “findings” by Dr Dxxxx Xxxxxxx that he noted down in his assessment report to Work and Income were substantially different to the ones of my usual doctor, one would have expected that Dr Xxxxxxx would have followed the expectations under points 16 and 17 of this document, and consequently informed my own GP, Dr Xxxx Txxxxxx, about his different assessment outcome. Dr Xxxxxxx apparently never supplied Dr Txxxxxx with a copy or transcript of his report; so again, he also neglected his duties in this regards.

 

The result of the totally unacceptable, irresponsible and in part illegal conduct of Dr Dxxxx Xxxxxxx did result in an indescribable course of events causing disastrous consequences and serious harm to my mental and physical health, general wellbeing, financial, personal and other living circumstances. Immeasurable damage was caused, and had Dr Xxxxxxx acted responsibly, competently and professionally within his scope, all this very serious amount of damage could have been avoided.

By taking these steps to raise the very serious matters that went wrong in the course of his conduct and following it, I am resorting to the last means I have to address these wrongdoings and most sincerely hope that you will fairly and reasonably assess, investigate and act upon these complaints in due course.

Appreciating your acknowledgement and consideration of the concerns raised in this letter, I remain

 

Yours sincerely,

 

Xxxxxxxx Xxxxxxx

 
 

P.S.:

Please be advised that a separate, complete list with all the submissions and relevant documents of evidence will be sent as a further attached document to this letter/email!

 

Attached to emails carrying the complaint were a number of directly and indirectly relevant evidence and submission documents, sent in PDF files, and the lists(s) of them can be found in this PDF attachment, acessible via this link (again sensitive data has been crossed out for understandable reasons):

HDC, Complaint, C12HDCXXXXX, Design. Dr, Breach of Code, email subm. list, anon, 02.07.2012

 

Please find some of the selected more important, anonymised crucial evidence documents (in PDF file format and accessible here), by clicking the following links. Included are some medical certificates presented to the HDC (besides of other important evidence), plus the complainant’s “Host Doctor Report” and the Designated Doctor’s report to WINZ:

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

HDC, Complaint, C12HDCxxxxx, Designated Doctor Report on complainant, anon, 17.06.10

HDC, Complaint, C12HDCxxxxx, complainant’s doctor report to Design. Dr, anon, 18.06.10

HDC, Complaint, C12HDCxxxxx, complainant’s doctor report to Design. Dr, anon, hilit, 18.06.10

HDC, Complaint, C12HDCxxxxx, complainant own doctor WINZ med. cert., anon, 29.10.07

HDC, Complaint, C12HDCxxxxx, complainant own doctor WINZ med. cert., anon, 23.01.08

HDC, Complaint, C12HDCxxxxx, complainant own doctor WINZ med. cert., anon, 19.06.08

Here are PDF files containing scan copies if internal emails and SWIFTT notes from Work and Income NZ, dated 12 July 2010, which contain the “recommendations” by their ‘Regional Health Advisor’ (trained by ‘Principal Health Advisor’ Dr Bratt), to get the sick complainant back into work a.s.a.p., by making “every effort” to get him off the benefit:

HDC complaint, Design. Dr, W+I internal email, w. RHA recommendation, hi-lit, 12.07.10

HDC complaint, Design. Dr, W+I internal SWIFTT rec., RHA recommendation, anon, 12.07.2010

HDC complaint, Design. Dr, W+I internal SWIFTT rec., RHA recommendation, hi-lit, 12.07.2010

And here are links to PDF files containing just two out of a total of five letters sent to the SICK complainant and WINZ client, expecting him to prepare for training or work, and to attend appointments with WINZ and Workbridge (dated 08 and 15 July 2010):

HDC complaint, Design. Dr, W+I ltr to complainant to disc. work, training on 22.07., 08.07.10

HDC complaint, Design. Dr, W+I ltr to complainant to disc. work, training on 22.07., hilit, 08.07.10

HDC complaint, Design. Dr, W+I ltr to complainant, ref. to Workbridge on 29.07., anon, 15.07.10

HDC complaint, Design. Dr, W+I ltr to complainant, ref. to Workbridge on 29.07., hilit, 15.07.10

 

COMMENTS:
As can be seen, the complainant presented a comprehensive complaint to the HDC, and much relevant, but also only indirectly relevant information was provided to back it up. Of very crucial relevance are the medical and disability certificates provided by the complainant’s own doctor for MSD, and of course the ‘Designated Doctor Report’ completed by the doctor complained about. Naturally some of the evidence listed in PDF files that were sent with emails were of more relevance than others. You can rest assured that all were authentic and proved what the complainant stated. As this post will be long and comprehensive as it is, we cannot present all the information that is mentioned. Some cannot be shown for legal reasons.

 
 

PART 3 – THE FIRST RESPONSE AND DECISION BY THE HDC

 

As it is rather common with complaints filed with the Health and Disability Commissioner, it took a very long time for the first proper response to come. There was an initial confirmation of the receipt of the complaint presented by our complainant against the general practitioner (GP) and WINZ ‘Designated Doctor’ in question. Further correspondence dated 18 September 2012 and 27 November 2012 informed him that a response had been sought and received from the doctor. But it was not until 24 February 2013 until a “decision” by the Deputy Health and Disability Commissioner Theo Baker was received. I was received by the complainant on 24 February 2013, but as it had that same date in the letter, it must have been written and sent the day before.

In any case, the letter was a huge disappointment for the complainant, who had at least expected a proper investigation. But no action was considered necessary, after the HDC considered the response by the GP. The doctor had responded with a letter dated 22 November 2012, defending himself and presenting himself in the best “professional” manner. A copy of that letter was attached. The Deputy Commissioner considered that an investigation would not be helpful and necessary. She was of the view that a Medical Appeal Board (MAB) was the panel offering rights to appeal WINZ decisions, and wrongly presumed the complainant had been successful in his appeal to such a Board. Re the doctor the Commissioner only asked him to “reflect” on the way he communicated with the complainant. Not surprisingly the complainant was in disbelief and deeply disappointed by the HDC’s decision. His complaint was about a doctor’s unprofessional and obviously biased conduct, and that was certainly not a matter that would be dealt with by a MAB. It appeared the few written comments given by the ‘Designated Doctor’ were considered more reliable than the comprehensive complaint information presented.

 

Firstly, under the following links you can find the earlier correspondence from the HDC Office, again in PDF file format (containing scan copies of the originals):

HDC, Complaint, C12HDCXXXXX, Design. Dr, ltr informing of Dr’s response sought, 18.09.12

HDC complaint, WINZ Design. Dr, HDC’s ltr seeking response fr. Doctor, hilit, 18.09.12

HDC complaint, WINZ Design. Dr, HDC’s 2nd reply to complainant, anon, 27.11.2012

HDC complaint, WINZ Design. Dr, HDC’s 2nd reply to complainant, hilit, 27.11.12

 

Here is the authentic transcript of Theo Baker’s complete letter with her decision, dated 24 February 2013:

 

Dear Xxxxxxxx

 

Complaint: Dr Dxxxx Xxxxxxx at Xxxxxxxx Health Centre

 

Our ref: C12HDCxxxxx

 

I write further to your recent email correspondence with Xxxxxx Xxxx of this Office. We apologise for the delay in responding to you again.

I have now completed my assessment of your complaint and outline my decision below.

Your complaint
You complain that Work and Income New Zealand (WINZ) appointed assessor, Dr Xxxxxxx, performed an inadequate medical consultation and examination on 17 June 2010. You also allege he failed to give due consideration to evidence from other health providers, made incorrect diagnoses, and recorded inaccurate details in his report to WINZ. In particular you raise the following concerns about Dr Xxxxxxx:

* You state his line of questioning resembled an interrogation rather than an examination, as all his questioning was targeted at details associated with your previous work experience and benefit history. He was unsympathetic towards you. The examination only lasted 12 minutes, and you believe Dr Xxxxxxx conducted it with a prejudicial mindset. You feel you were not given sufficient opportunity to explain your health issues.

* You provided Dr Xxxxxxx with documentation that gave evidence of your diagnosed health issues and treatment by mental health and addiction specialists. Upon doing so he advised you that he would not need them, and refused to make a copy of the information to assist with his assessment.

* You dispute the accuracy of the information contained in Dr Xxxxxxx’s WINZ ‘Designated Doctor Report’, and you consider his assessment and report were not evidence based, unfair, unprofessional and biased. In the diagnosis section of the report he referred to you as an “alcohol binge drinker” who lacks motivation to work. The report failed to indicate that you were receiving current treatment/intervention, or were under the care of specialists. You state WINZ relied on his assessment, while ignoring all other medical information, when making its decision to transfer you from an invalids to sickness benefit.

* You state Dr Xxxxxxx is not appropriately qualified to conduct an assessment of a client with your particular medical conditions. You believe he should have acknowledged and accepted his professional limitations and refrained from conducting the assessment.

* You state Dr Xxxxxxx did not follow guidelines set out in the Ministry of Social Development’s resource manual, “Guide for Designated Doctors”.

My consideration
Under section 38 of the Health and Disability Commissioner Act 1994 (the Act), the Commissioner has the discretion to take no further action on a complaint when he considers it is unnecessary or inappropriate to do so. One of the relevant factors he may take into consideration is whether there is an adequate remedy or right of appeal that it would be reasonable for the complainant to exercise.

In this instance, I consider that the Medical Appeals Board is an adequate right of appeal for WINZ decisions, and it seems that you have been successful at overturning WINZ’s original decision via this appeals route.

However, this Office did ask Dr Xxxxxxx to specifically respond to the communication issues you raised. In his response to this Office, dated 22 November 2012 (copy enclosed), he states that his interviews are all patient-centred, and he is very careful to approach all cases in a standardised and non-judgmental manner. Thus, it is clear that his views about his communication style during the consultation are contrary to yours. I do not consider further investigation into this matter will provide any new information that will help resolve this discrepancy, especially given the amount of time that has elapsed since your assessment.

Accordingly, in accordance with section 38(1) of the Health and Disability Commissioner Act 1994, I have decided to take no action on your complaint. I have, however, asked Dr Xxxxxxx to reflect on the way he communicated with you.

Thank you for bringing your concerns to our attention.

 

Yours sincerely

 

Ms Theo Baker
Deputy Health and Disability Commissioner

 

cc: Dr Xxxxxxx

 
 

Please find under the following links a PDF file with a scan copy of that original letter (with sensitive information whitened out):

HDC complaint, WINZ Design. Dr, HDC’s initial decision ltr, T. Baker, anon, 24.04.2013

HDC complaint, WINZ Design. Dr, HDC’s initial decision ltr, T. Baker, hilit, 24.04.13

And here is the letter from the ‘Designated Doctor’ (a common GP), dated 22 Nov. 2012, that was attached to Ms Baker’s response:

HDC complaint, WINZ Design. Dr, Doctor’s ltr to HDC, defending conduct, 22.11.2012

HDC complaint, WINZ Design. Dr, Doctor’s ltr to HDC, defending conduct, hilit, 22.11.12

What was NOT included in that response by Deputy Commissioner Theo Baker was an earlier reply by the ‘Designated Doctor’, which contained also his “Designated Doctor Report”, that could have been compared to other evidence provided to the HDC, and would thus make it blatantly obvious that the doctor must have been biased, had not professionally and fairly examined and considered all evidence, or both. But most bizarrely, Ms Baker chose to rather back her own decision on the doctor’s letter stating he always acted “professionally” when talking with his patients or clients sent by WINZ. Here is that first reply by the virtual “hatchet doctor”:
HDC complaint, WINZ Design. Dr, Doctor’s first response to HDC, w. D.Dr Report, 20.09.2012

HDC complaint, WINZ Design. Dr, Dr’s first reply to HDC, w. D.Dr Report, hilit, 20.09.12

Comments:

The actions by Theo Baker and the HDC, and her peculiar “decision” reveal how the HDC is really NOT putting the concerns of complainant first, they appear to rather give overly much more favourable consideration to the doctor. Now this challenges the claim of neutrality and “independence” by the HDC!

Also did the doctor himself take the position that “complaints of this nature are more correctly addressed to the Medical Appeals Board” (see letter from 20 Sept. 2012). He also refers to a letter “from your department” (the HDC it appears) from 16 August 2010. So the doctor appears to remind the HDC of some form of an earlier agreement that must have existed about how to deal with complaints about WINZ ‘Designated Doctors’. Also does the doctor make clear that he will copy his letter to the HDC to Anne Alexander, Operations Manager at Work and Income’s Regional Office in Auckland!

This is absolute proof that the HDC is collaborating with the Ministry of Social Development, same as what they do with ACC. And it must have been that reference by the respondent doctor, why this letter was not independently considered and attached to Ms Baker’s decision. Only upon further requests, then also under the Privacy Act, would that letter by the doctor be released later with a letter from their Legal Advisor Georgina Rood, dated 04 Nov. 2013!

We do get the usual media reports about how the HDC “addresses” failures and misconduct by medical practitioners and so forth, but even then, in these “tip of the iceberg” cases, the HDC usually only offers hopeless recommendations, which rather resemble the “slap on the wrist with a wet bus ticket approach”. I must ask, when does our useless media confront the HDC about their true agenda?

 
 

PART 4 – THE COMPLAINANT’S REPLY TO THE HDC AND THEIR DECISION

 

As already mentioned in the introduction, the decision by Deputy Commissioner Theo Baker was totally unacceptable to the complainant. Hence he saw a need to raise his valid concerns and firm objections to it, and asked for a re-assessment of his complaint, and with that a review of the decision. He insisted on Health and Disability Commissioner Anthony Hill, or another Deputy Commissioner, to reconsider the matter, as he had lost all trust in Theo Baker handling any complaints in a fair and just manner. She had also been involved in the handling of the earlier complaint he had made to the HDC in another matter. That had also been handled in a very questionable way, so that in both complaints it would be the HDC’s Legal Advisor, and also Associate Commissioner Katie Elkin, who would then “defend” the decisions made to take no actions.

First here is a link to a PDF copy of the reply letter from the complainant, dated 26 April 2013. Some people may find the text in the PDF copy mor easy to read:

HDC, Complaint, C12HDCXXXXX, Design. Dr, Breach of Code, reply to dec., anon, 26.04.13

 

And here is the authentic transcript of the letter by the complainant, dated 26 April 2013:

 

Xxxxxxx Xxxxxx
XXXXX x
xx Xxxxxxxxxx Street
Xxxxxxxx
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

26 April 2013

 

Attention: The Health and Disability Commissioner

Re: Complaint 12HDCxxxxx (breaches of the ‘Code of Health and Disability Services Consumers’ Rights’, the ‘Code of Ethics’ of ‘The Medical Association of New Zealand’ and legal provisions – by General Practitioner Dr Dxxxx Xxxxxxx); response to your decision dated 24 April 2013

 

Dear Health and Disability Commissioner, dear Madam / dear Sir,

This letter is in response to your Deputy Health and Disability Commissioner’s decision to take no further action on my complaint about professional misconduct, breaches of my consumer rights, principles of the ‘Code of Ethics of the New Zealand Medical Profession’ and certain legal provisions, which I established Dr Xxxxxxx, general practitioner (GP) at ‘Xxxxxxxx Health Centre’, has committed.

I request that this letter will be read, the raised issues attended to and dealt with by Commissioner Anthony Hill himself, or another Deputy Commissioner, but not by Ms Theo Baker. Furthermore I insist that your Mental Health Commissioner is consulted on all matters raised in relation my complaint.

Ms Theo Baker based her decision on section 38 (1) of the ‘Health and Disability Commissioner Act 1994’ (the Act), which gives her as Commissioner certain discretion to make such a decision on a complaint received. She gave explanations as to how and why she decided this way on the matter.

While I respect your Commissioner’s rights and responsibilities under the Act, I feel extremely disappointed, yes devastated, upset and highly distressed, that she has chosen to take this course of action. I cannot accept the decision and how it was made, as the response dated 24 April 2013 (which I presume should have been the 23 April 2013, as I received it by ordinary post on that 24 April) does give me the very clear impression that very insufficient and only selective consideration was given to some of all relevant and crucial facts – plus submitted evidence – that I supplied with my complaint.

I do particularly take issue with the following points:

1. Ms Theo Baker states that she considers it adequate, that I had the right to address issues with Dr Xxxxxxx and his examination, which delivered the “recommendation” on which Work and Income (WINZ) staff made their decision (on medical grounds) about my health related benefit entitlement, by filing an appeal under section 53A of the Social Security Act 1994 and have matters heard by a Medical Appeal Board. She also wrongly states that I was “successful” in following this appeals route.

2. Ms Baker mentions that she asked Dr Dxxxx Xxxxxxx to specifically respond to the “communication issues” I had raised. It appears that none of the many other serious issues (e.g. breaches of various rights, codes and law) I raised in relation to Dr Xxxxxxxx and his conduct was put to him to answer to.

3. While Ms Baker summarily listed some of the main points of issues I had raised about Dr Dxxxx Xxxxxxx and his professional conduct during and after a medical examination (conducted on 17 June 2010 for Work and Income New Zealand (WINZ)), she did not at all address most of these, but one.

4. Her consideration upon which she made the decision to take no further action to investigate – or to take other measures – appears to be solely, or at least primarily, based on the argument that I had the right and ability to raise my issues before a Medical Appeal Board. It appears NO other considerations were given to the large amount of compelling evidence I supplied to your office with my complaint.

5. Ms Theo Baker has clearly also given consideration to statements Dr Dxxxx Xxxxxxx made in a letter dated 22 November 2012. I do though take serious issue with the comments and statements by Dr Xxxxxxx, which are in large part generalisations of his claimed usual conduct and handling of referrals from WINZ. In relation to my case they are absolutely untrue. Dr Xxxxxxx even dares to claim that I basically willingly “chose” to see him for that “interview”, which WINZ required to be conducted as a medical examination under section 44 of the Social Security Act, offering little or no true choice.

Hence Ms Baker has left me in a situation where I can only conclude that totally insufficient considerations were given to indeed very relevant information – and that my complaint has consequently not been properly and thoroughly examined and investigated. The decision by Ms Baker also raises serious questions about fairness, reasonableness and objectivity, which means that in the assessment – and only very limited investigation – principles of natural justice were not followed.

It is my firm view and belief that your staff are bound by natural justice principles in making any determination, as well as they are required to apply a reasonable duty of care, whether it is only for making an initial determination or a final determination on a matter put before you and your office.

Detailed arguments re the issues raised above:

1. A Medical Appeal Board is a panel of 3 medical and health professionals, appointed by a Medical Appeal’s Coordinator employed by the Ministry of Social Development (the Ministry) to hear appeals put before them on medical grounds only. It is common that at least 2 of the 3 members are MSD trained designated doctors (almost all GPs) working with or for MSD. Appointments are made from an established pool of panel members, who in most cases are designated doctors that have been selected by the Ministry, which employs also a Principal Health Advisor, Principal Disability Advisor, a number of Regional Health Advisors, Regional Disability Advisors and so-called Health and Disability Coordinators, who all work with such mentioned doctors and other health professionals.

All the MSD staff mentioned are involved in finding and selecting designated doctors, but a special role is played by Health and Disability Coordinators (see position description in attached PDF document 5, listed at the end of this letter), who regularly visit general practitioners and other health practitioners. All staff working under the Principal Health Advisor (PHA), who has since 2007 been Dr David Bratt, have been and are being managed, trained, instructed and monitored by that PHA. Dr David Bratt is himself known to be a very biased, using selective “research” and even scientifically unproved statistics. As “Principal Health Advisor” (see a position description in attachment 6 listed at bottom of this letter) he has held numerous presentations for GPs and other health professionals, and he also used training material, which contained bizarre, biased statements. In presentations he gave to general practitioners he usually compares benefit dependence to “drug dependence”!

I may in this regard refer you to PDF and PowerPoint documents attached to the email sent with this letter, which are also listed as further evidence documents 8 to 12 at the bottom of this letter! Dr Bratt quite unashamedly exposes his own bias, which MSD and Work and Income appear to not only tolerate, they appear to rather accept and permit Dr Bratt’s position!

While members sitting on a Medical Appeals Board are different medical practitioners – or other health professionals – from the one(s) that acted as designated doctor who initially examined a WINZ referred client/patient under sections 44 and 54B of the Social Security Act, they are in their vast majority also WINZ trained designated doctors (usually GPs). An attached PDF file shows the list of all “designated doctors” used by WINZ, current as on 20 August 2012 (see attachment 2 in the list at the bottom of this letter). All designated doctors have been – and are being regularly informed, trained, instructed and liaised with (or: are liaising) by WINZ and MSD staff (by the Principal Health Advisor, and also by the Regional Health and Disability Advisors, Health and Disability Coordinators).

According to the Social Security Act 1964 the medical practitioners, psychologists or other health professionals that work for WINZ are supposed to be “independent”. The same is supposed to apply to those sitting on Medical Appeal Boards. The truth is far from that, already clearly due to them being carefully chosen and appointed by WINZ and MSD staff. The fact that they are also trained, monitored and bound to fulfil certain strict expectations that the Ministry has in them, does make them anything but “independent”. I have evidence of this, which was also presented in a case filed at the High Court in Auckland on xx Xxxxxxx 2011.

The Medical Appeal Board (3 GPs as long term WINZ designated doctors) that heard my appeal on only medical grounds, was displaying a clear bias. I had repeatedly insisted to the Medical Appeals Coordinator that due to my particular mental health and addiction illnesses, and disabilities arising from them, I should be heard by a panel that had at least one psychologist or psychiatrist. This was bluntly refused, and MSD insisted on me being heard by their chosen GPs, all having no evident mental health and/or addiction treatment knowledge and experience. I presented well over x00 pages of compelling evidence to make my case, but much of it was simply ignored – or not considered fairly, reasonably and objectively.

That Board did at no time pay any attention to the way Dr Xxxxxxx may have conducted his examination and interview, and it was not interested in his professional competencies or any other matters that I raised with your office. As a matter of fact, such a Medical Appeal Board has no responsibility to address any of the particular issues I raised with your office! I refer you to the attached document ‘Medical Appeals Board – A resource for board members’ (see evidence document 7 listed at the bottom), which gives “official” information about the role, appointments, and processes to follow and so forth. On page 19 it is clearly stated what is outside of the area of responsibility for such Medical Appeal Boards.

While the Medical Appeal Board that heard my case adopted a somewhat more moderate, and in part perhaps a slightly “more objective” view on aspects in their report and decision, the members did in the end still stubbornly support and confirm the decision that WINZ made based on the report presented by the apparently even more biased Dr Xxxxxxx. Ignoring very relevant, serious aspects and evidence, I was considered to be able to work part time (over 15 hours a week) within a short time. Presumptions were made about purely hypothetical work that I could perhaps do, while “working around my drinking”. This was the result of the new stringent approach to look rather at what a client “can do”, rather than what a client “cannot do”! Consequently WINZ stopped my invalid’s benefit and put me on a sickness benefit.

Due to some illegal processes followed and the natural justice breaching handling of my case by that Board, I was forced to spend many months looking for a lawyer who would be prepared to assist me and file a judicial review with the High Court. This was the only way I could seek legal redress for the wrong decision made. I approached dozens of lawyers, and only one was after desperate convincing on my behalf prepared to take up my case and prepare judicial review proceedings. As she was doing it all under legal aid, which barely covered her costs, it became clear that she could only spend so much time and effort on it.

It is absurd to claim that I “succeeded” taking the appeals route. There is NO further right of appeal under statutory law once a Medical Appeal Board (appointed by MSD staff!) makes a determination. So I did not succeed with an appeal at all, and I was forced to go and make arduous efforts and suffer endless stress, impacting very badly on my already poor health, to finally at least come to a settlement with MSD (after 10 months of very difficult negotiations). I have attached to this letter a PDF file of relevance, to show the valid legal issues that arose through Dr Xxxxxxx’s flawed, unprofessional, biased medical assessment, and the sought legal remedies of some core claims made against MSD and the Medical Appeal Board that heard my appeal. It is a copy of the original ‘Statement of Claim’, filed at the Auckland High Court on xx Xxxxxx 2011, which is PDF attachment 1 (as listed at the end of this letter). The final settlement was confirmed by a formal, but undated letter, received from MSD on xx Xxxx 2012, which is PDF attachment 2 (as listed at the end of this letter).

I should instead have been given time and peace to focus on my health and needed treatment, but that was definitely NOT possible for all that time. So if this is a “success”, then this is a totally unfounded, ill-informed and unreasonable view by Ms Theo Baker.

My complaint to your office was about Dr Xxxxxxx breaching a number of rights under the ‘Code of Health and Disability Services Consumer’s Rights’, but this has been considered to be unnecessary to address by Ms Baker, as I supposedly could have had these issues resolved by a Medical Appeal Board. It is apparent that Ms Baker does not even understand the realities, the relevant law and the intended role of such a Board, and what can be presented and resolved in applied processes. Clients of WINZ are exposed to bias and unfair treatment by medical practitioners acting as designated doctors (mostly GPs) at all levels.

So the stated considerations by Ms Baker are most certainly not accepted by me, and it is unreasonable, unfair and not based on objective analysis of the facts, what she has decided.

2. I appreciate that a letter from Dr Dxxxx Xxxxxxx (dated 22 December 2012), the assessor and examining medical practitioner in my case (on 17 June 2010), in response to “communication issues”, was attached to the response I received from Ms Theo Baker.

From her response to me, and Dr Xxxxxxx’s letter, it becomes clear that Ms Baker only confronted Dr Xxxxxxx with one point of my complaints, namely that of a breach of Right 5 – ‘Right to Effective Communication’, to which Dr Xxxxxxx gave his comments. These were only made in a generalised form, by him claiming he does usually follow a reasonable standard format and manner in communicating with clients/patients referred to him by WINZ staff. He defends himself by claiming he always acts in a “patient-centred” and “careful” manner.

Dr Xxxxxxx states that he does not have any clear recollection of the examination, interview and communications with me, as it happened nearly two and a half years before. This may well be the case, but your office was presented with abundant evidence showing what he recorded on me and my health conditions, and also what report and recommendations he sent to WINZ. I gave a detailed description of the conversation and examination by Dr Xxxxxxx, which was based on truthful notes I had made right after the interview. Further to that I did in confidence discuss Dr Xxxxxxx’s examination and him personally with my own GP, who confirmed to me that Dr Xxxxxxx was a “difficult” person to deal with, as staff and a colleague of his had experienced this in a very serious manner, where both practices were involved. My own GP informed me that he and others knew, that Dr Xxxxxxx was doing a large amount of examinations and assessments for WINZ, and he often also requested “host doctor reports”.

In his letter Dr Xxxxxxx further claims that all these issues were clearly covered in his report on me, which I presume is the one that he sent to Work and Income. That though is absurd, as I pointed out in detail in my complaint. The report is full of flaws, mistakes, partly does not answer questions, in other parts gives bizarre, incorrect, clearly biased answers, and it does not even meet the basic requirements set in the Guide for Designated Doctors, which WINZ supplies to every doctor they commission to examine their clients on their health. Every person who looked at it, including my lawyer, instantly commented that the report was clearly flawed, biased and prepared in a rushed, unprofessional, anything but considerate manner.

I presented a range of medical certificates, completed forms and other medical reports and letters from my GP and other healthcare specialists, and it is more than clear, that Dr Xxxxxxx’s report and recommendation is totally out of line and without basis. One document (‘Disability Certificate’, see attachment 9 to email 3, sent to you at 02:30 am on 01 July 2012) had been completed by my own GP on that same day as Dr Xxxxxxx’s examination and assessment on me, and that document was also provided as evidence, showing major differences between what Dr Xxxxxxx “diagnosed” and recorded, and what my own doctor found and stated. In my complaint to your office I stated and explained all this in detail.

Ms Baker appears to simply have taken Dr Xxxxxxx’s words in his letter for likely facts, has apparently not even examined the ample evidence that I supplied, and thus she has failed abysmally in not establishing that Dr Xxxxxxx has displayed a clear bias and a true lack of understanding or appreciation of my health issues and conditions. It is evident that Dr Xxxxxxx was the wrong kind of doctor to perform the examination and assessment on me.

There was apparently NO attempt made to challenge Dr Xxxxxxx on his lack of expertise, qualifications and competency in mental health and addiction diagnosis, treatment and examination. That in part explains how his manual and typed reports and recommendations to WINZ are completely unfounded and bizarre. As I have learned over the last three years, it is though common practice, that WINZ send clients to their preferred designated doctors (mostly only GPs), to get the recommendations they want, so they can shift sick and disabled onto a lower paid benefits, and put pressure on them to rather try and find any part or full time work they are supposed to be able to do, despite of their incapacity. Cost saving is the true agenda.

As my own GP and other medical professionals have confided to me, Dr Xxxxxxx has been, and apparently still is, doing a high amount of “examinations” and “assessments” for Work and Income on a regular basis, which clearly is also a sought after, secure revenue stream for him. This will now be even more important to him, given his loss of revenue from XxxCare funding, which was repeatedly reported on in the NZ Doctor magazine in mid to late 2012.

It is absolutely wrong and untrue, that I – or any other WINZ client for that sake, have any kind of real free choice to see Dr Xxxxxxx or any other medical practitioner or specialist for examinations or “interviews” on health conditions, which impact on ability to work or study. Dr Xxxxxxx’s comments that I came to an “interview” at the “request” of WINZ was clear “acceptance” that I was “willing to do this”, is absurd. According to the legal provisions under sections 44 and 54B of the Social Security Act clients can be forced to be medically examined by a medical practitioner or psychologist. Non compliance would mean having one’s benefit cut or stopped! As MSD and WINZ have virtually NO psychologists on their books as “designated doctors”, and very few psychiatrists, they do in virtually all cases send their clients on sickness or invalid’s benefit, or applicants for such benefits, to their preferred and managed designated doctor GPs. I already stated under point 1 above, that they have all been “trained” by PHA Dr David Bratt, and they are also “advised” and “consulted” on a regular basis, what WINZ expects of them. This certainly is not limited to basic standards for filling in medical certificates and the likes. Just looking at presentations by Dr David Bratt (and I have yet more information!) shows, that there is at least a strong attempt made by him, and other MSD and WINZ staff, to unduly influence the doctors they work with (see again attachments 8 – 12).

I do also know a person I have been acquainted with, who was at a later stage in 2011 also TOLD by a WINZ case manager to see Dr Dxxxx Xxxxxxx for an assessment, when having to apply for the invalid’s benefit. That person was initially not even given any choice at all, about whom to see. Only because that person had been advised by me, that he would according to the statute have a right to try and “agree” (and thus try to make his own suggestion for a medical professional) with WINZ – on who to be examined and assessed by, did the person raise issues with the case manager. Eventually he was allowed to see another designated GP.

It is very common that WINZ staff members (usually case managers in cooperation with Regional Health Advisors) do not offer their clients any choice about designated doctors to re-examine and re-assess them. At best they present clients a small short list of their preferred designated doctors, which also happened in my case. I was not given any advice on the law, and that I could propose another doctor than those on the list presented. So I was forced to make an uninformed, very limited “choice” from that list, not knowing what really goes on in such cases. Such a restricted “choice” and “agreement” under the threat of having the benefit stopped for the case of non-compliance, is actually illegal and unfair practice by Work and Income staff! I only learned this later. Nothing re this has changed, according to anecdotal information that I received from others affected and advocates working with beneficiaries. WINZ only settled with me on issues I had raised by way of legal proceedings, xx xxx xx xxxxxxxx (crossed out on legal advice), so they could continue with applying their agenda and processes to others.

Dr Xxxxxxx will as a well known, long term, experienced and surely informed designated doctor for WINZ know full well what the applied processes and procedures in use are, and he is certainly misleading your staff with the comments in his letter to your office.

Last not least, it is also common practice by WINZ and their staff, that they exclusively rely on information in designated doctor reports and recommendations, and largely ignore any other, earlier medical reports and documents presented to them, once a current designated doctor report is received. Whatever a designated doctor diagnoses, records, reports and recommends is in almost all cases accepted by the Health or Disability Advisors working for MSD and WINZ, who then make corresponding recommendations to case managers, who simply adopt these as they are presented. Only “officially” the case manager makes decisions.

This means that the role and service delivered by designated doctors is a highly sensitive and important one. Hence a very high standard must be expected, and detailed scrutiny, consideration of all medical aspects, earlier reports and what else is relevant, should be applied by such doctors as Dr Xxxxxxx. Making wrong diagnosis and recommendations can lead to disastrous consequences; and like in my case push some wrongly assessed WINZ clients close to self harm or suicide! It appears that your staff members are not familiar with the designated doctor and related processes that are followed by Work and Income, and hence Ms Baker has failed to take these matters as seriously as they should be taken. We are dealing with matters involving at times very critical, delicate health issues, and in some cases possibly life or death consequences. Harm should be avoided at all times by any doctor.

With my compelling evidence I also supplied to you a copy of a document dealing with an earlier complaint a WINZ client had made about Dr Dxxxx Xxxxxxx (see evidence document 11 that was attached as PDF to email number 5 that was sent to you at 12:43 h on 02 July 2012). It is an internal memo from Nxxxxx Hxxxxx, Service Development Advisor for MSD, dated 18.06.2010. It should most certainly have prompted your staff to examine my complaint with all raised issues very seriously and thoroughly, which regrettably has not been done.

3. In summary on this point, of all my rights under the ‘Code of Health and Disability Services Consumer’s Rights’ only questions re Right 5 appear to have been raised with Dr Xxxxxxx. The other rights 1, 3, 4 and 6, that were also breached, and which I raised in my original complaint, have by all indications not at all been seriously discussed with him.

Re the ‘Code of Ethics for the New Zealand Medical Profession’ and various principles I listed for having been breached by Dr Xxxxxxx, nothing appears to have been done. Also have there been no apparent efforts made to clarify issues with Dr Xxxxxxx apparently having breached section 8 of the ‘Health Practitioners Competence Assurance Act 2003’: “Health practitioners must not practise outside scope of practice”. It is beyond me how such a serious matter can be left unaddressed by your office! This is a matter that must also interest the Medical Council.

Re the ‘Health Information Privacy Code 1994’, rules 2, 3 and 8 on the sourcing, collection and ensuring the accuracy of health information, nothing seems to have been done either, to examine and assess whether Dr Xxxxxxx did or did not comply with these.

Regarding the ‘Health (Retention of Health Information) Regulations 1996’, particularly sections 5 and 6, nothing has been followed up with Dr Xxxxxxx! He clearly has not kept documents that according to those regulations should have been kept by him. This was made very clear in my complaint and even in response by Dr Xxxxxxx to a Privacy Act request I made to him (by email) on 27 May 2012. You can find proof of this in his email response to me dated 11 June 2012 (11:28 am), which was also provided as evidence document 2, attached to email 1, sent to your office at 10:34 pm on 30 June 2012

All the issues I raised in relation to standards or requirements set by the Code of Ethics, and the various other legal provisions, are clearly also relevant to assess and determine in how far any ‘Rights’ under your office’s own Code were upheld or not by Dr Dxxxx Xxxxxxx.

I am bitterly disappointed that no assessment was done in this regards at all.

4. With my complaint I provided substantial and well documented evidence, to support my complaint. I admit that some of it may only be of secondary or little direct relevance, but one should fairly and reasonably expect that at least the wide range of provided medical records and documents, from my own doctor, Dr Xxxxx Txxxxxx, as well as from XXXX counsellors, a XXXX psychiatrist, from specialists at St Luke’s Community Mental Health Centre, from XxxXXXX psychologist Xxx Lxxxxx, from Xxxxx House, and so forth should have been read by your staff. This appears to not have happened. Again I attach the list of said evidence, detailing what document was attached to which particular email sent, and dated 02 July 2012 to the email carrying this letter. It is listed as “3” under the attachments at the end of this letter.

Also should it have been of real relevance, what happened as a consequence of Dr Xxxxxxx’s wrong assessment and recommendations, e.g. how Work and Income harassed me with letters demanding I attend Workbride and other interviews, prepare for work and study and the likes. It would have been even more important to view the documents showing how my requests for a psychologist or psychiatrist to be member of the Medical Appeal Board hearing my appeal against the wrong decision by WINZ, which was based on false, flawed information from Dr Xxxxxxx, was completely ignored and not followed by MSD. This clearly shows the complete disregard that MSD and WINZ have towards clients seeking justice and fairness.

Other information, like reports from XxxXXXX (early 2011 and 2012) clearly show how the whole processes involving the designated doctor assessment, the Medical Appeal Board hearing, and the constant denial of my rights, impacted extremely badly on my health. The mentioned developments and my desperate attempts to seek a judicial review impacted severely on my ability to focus on recovery. Rather than being forced to fight for my rights as a wrongfully treated WINZ client, also wrongly assessed by the biased designated doctor Dxxxx Xxxxxxx, I should have been treated with fairness, reasonableness, objectivity and respect.

The Medical Appeal Board’s decision and recommendation in my case should have been looked at, to see how biased that panel was, at the same time also lacking the qualifications, expertise and competence to properly hear an appeal from a person with my conditions.

Evidence I supplied clearly shows how I was eventually forced to take matters to the High Court, which caused enormous stress and impacted severely on my health, so that I am still suffering from the consequences of this. This happened to me already struggling with illness.

As it was my sincere expectation that your office would have the skills, the understanding, appreciation, the means and abilities of your staff, to fairly, reasonably and objectively examine and assess a complaint about Dr Dxxxx Xxxxxxx and his clearly proved wrong conduct, I put faith and trust into a fair and reasonable process to be followed.

The decision that your staff have presented to me resembles a slap in the face to me, and it is more than extremely disappointing, that apparently only very selective, low level and limited efforts were made to examine and address the number of issues I raised. I was stunned when my own GP, Dr Xxxxx Txxxxxx of the Xxxxxxxxxx Bay Medical Centre, recently told me (upon my questions), that he was never contacted by anyone from your office, to perhaps get some information on my situation, my health issues and about Dr Xxxxxxx’s involvement from him.

I already made it absolutely clear under point 1 in this letter, that in no way could the Medical Appeal Board that was only tasked with considering my appeal on medical grounds, have any authority, let alone ability and means, to deal with the issues that I raised with your office in regards to Dr Xxxxxxx, his appalling, biased, in part unprofessional and illegal conduct.

Claiming that my right and ability to make an appeal to a Medical Appeal Board on medical grounds is a fair reason to NOT investigate – or otherwise address issues I raised with my complaint to your office – is actually untrue and not acceptable. Ms Baker has therefore made a decision based on totally irrelevant information and facts. This represents a breach of natural justice, and I must appeal to you to remedy this and review the decision made in this matter.

5. Ms Baker appears to have accepted Dr Xxxxxxx’s statements in his letter from 22 Nov. 2012 to your office rather unchallenged. She merely states that his statements and comments are “contrary” to the ones I presented. She appears to have taken his word for him claiming his interviewing of clients/patients “are all patient-centred”, that he is “very careful” to approach all cases in a “standardised” and “non-judgmental” manner.

She writes: “Thus, it is clear that his views about his communication style during the consultation are contrary to yours”.

This is unacceptable to me, as the very reports that Dr Xxxxxxx completed on me show a total disregard to the presented medical diagnosis, assessment of work capacity and various treatment related, or other aspects, that were stated in records by my own doctor and other medical professionals or “specialists”! They clearly show that Dr Xxxxxxx failed to act fairly, responsibly, respectfully and professionally. He did prepare reports that were not based on the available objective information and facts presented to him. If unsure, he should have sought further information, but he did not bother to do this, displaying a high degree of bias or neglect.

A degree of bias certainly appears to be evident, likely in combination with a lack of understanding and appreciation of what my true medical conditions and work capacity were.

As this is all clearly well documented, it is not fair and reasonable for Ms Baker to simply base her considerations so substantially on that letter from Dr Xxxxxxx, for making the decision she made. Ignoring highly relevant information and documents of evidence is irresponsible and in conflict with the responsibilities she has as Deputy Health and Disability Commissioner.

I presume though that she has based her decision on what other staff working under her have presented to her as their “assessment”, so she may simply have relied on this questionable advice and decided to sign a letter that announces and tries to justify the decision made.

As for the claims by Dr Xxxxxxx, that I willingly agreed to see him upon a request by WINZ, I have already explained under point 2, that there is little voluntary and fair agreement possible for any WINZ client facing a review and a mandatory examination (see sections 44 (1) and 54B (3) of the Social Security Act. The Chief Executive and her/his staff can “require” sickness and invalid’s beneficiaries to be examined, this isn’t just a kind “request” we are talking about.

Section 44 (1) of that Social Security Act 1964 states the following:

“The chief executive may require an applicant for an invalid’s benefit, or a person in receipt of an invalid’s benefit, to submit himself or herself for examination by a medical practitioner or a psychologist. The medical practitioner or psychologist must be agreed for the purpose between the applicant or beneficiary and the chief executive, or, failing agreement, must be nominated by the chief executive.”

And section 54B of the same Act states this:

“The chief executive may at any time require an applicant for a sickness benefit or a sickness beneficiary to submit himself or herself for examination by a medical practitioner or psychologist. The medical practitioner or psychologist must be agreed for the purpose between the applicant or beneficiary and the chief executive, or, failing agreement, must be nominated by the chief executive.”

It is clear that WINZ will ultimately have the upper hand to appoint and assign the kind of designated doctors they have chosen to conduct such examinations. Client input will regularly be rejected, and so medical practitioners like Dr Xxxxxxx will be the ones offering the often biased, not independent assessments and recommendations that MSD and WINZ want.

Non-compliance with WINZ will mean that WINZ case managers and their advisors will argue that they have insufficient information to renew or grant a sickness or invalid’s benefit, which would put enormous financial pressure on any affected person. Clients face pressure to accept the processes presented to them, or to lose their required, basic benefit income.

As I am now well informed and could offer you a huge amount of further compelling evidence, how MSD and WINZ work when assessing clients for their health conditions and work capacity, I can assure you that any talk about “independence” of doctors like Dr Xxxxxxx, and informed “choice” and willing “agreement” on any assessor by clients affected is a distortion of the truth. MSD have done all to keep information withheld, and it was only thanks to my lawyer that I obtained highly sensitive, revealing information, what has and is going on behind the scenes. In view of this, the letter by Dr Xxxxxxx, dated 22 Nov. 2012, must be seen as a desperate attempt to avoid accountability and to cover himself from undesired consequences!

Final comments, conclusions and expectations:

Given that the stated (wrong) reasons for not taking further action on resolving my complaint existed at least since the receipt of the letter from Dr Xxxxxxx (dated 22 Nov. 12) by your office on 27 November 2012, I must ask in all sincerity, what was otherwise done with my complaint over the last 5 months?

If his response, and the then already known fact, that I had taken an appeal to a Medical Appeal Board in October 2010, were the supposedly major relevant matters to consider, then I am left under the impression that my complaint seems to have been lying unattended in your offices for most of that time. I see little evidence that any of my submitted, relevant evidence documents have been looked at.

This is not a good look for the Office of the Health and Disability Commissioner.

The decision to take no further action will also serve to facilitate the continuation of illegal processes by doctors like Dr Dxxxx Xxxxxxx and by Work and Income staff, who have over recent years already thrown thousands off the invalid’s benefit, under the draconian ‘Future Focus’ policies introduced in 2010. The new welfare reforms to be implemented from July this year will escalate this appalling process, and I expect that the result will be the first kinds of self harm and suicides by wrongly diagnosed and assessed WINZ clients, particularly those with mental health conditions and issues, who will be denied fair treatment and respect even more frequently.

Appeals to Medical Appeal Boards, with members that are also MSD chosen and appointed, and who are also anything but truly “independent”, are the only measure any WINZ client can take after having been given an unsatisfactory diagnosis and recommendation by practitioners like designated doctor Dxxxx Xxxxxxx. I was the first and only person who ever managed to file for judicial review in such a case. The lack of access to justice, also due to new limitations to obtain legal aid, and the total absence of any further appeals provisions after Medical Appeal Board hearings, makes it impossible for WINZ clients to get fair, just and independent treatment under the present system.

The Minister for Social Development has already announced to introduce work capability assessments along the lines they are done by ATOS Origin Healthcare for the Department of Work and Pensions in the UK. Recently published data reported that over 1,100 affected sick and disabled in the UK either died early while not coping with wrong assessments and higher work expectations, or simply committed suicide. It is extremely disconcerting that senior staff members of your office, like Ms Baker, do take such a dismissive position on questionable conduct by medical assessors like Dr Xxxxxxx.

I must urge you to conduct a thorough, fair, reasonable and objective re-assessment of my whole complaint, and to apply principles of natural justice in conducting a real, proper investigation in the matters raised by me with your office.

If this will not be done, then I will need to examine, whether it will be possible and advisable to seek a judicial review of the decision made.

I trust that you will look honestly and seriously at the concerns, objections and disapproval I have expressed in this letter, and I will look forward to your response in due course.

Yours thankfully and sincerely

 

Xxxxxxx Xxxxxxx

 

P.S.:

Further to the above I seek full disclosure of any previous or present contacts (personal, professional or other) any existing or previous staff member working at and for the ‘Office of the Health and Disability Commissioner’ has had with Dr Dxxxx Xxxxxxx, general practitioner, and also previous xxxx xxxx xxxxxxxx at Auckland University’s Medical School. This may also be treated as a request under the Official Information Act 1982.

 

Attachments to email sent with this letter:

1. PDF file with ‘Statement of Claim’, for Application for Review, from xx Xxxxxxx 2011, filed with the High Court at Auckland, xx Xxxxxxx 2011; stating the various legal issues and implications in question – also of relevance to certain issues in this complaint matter (see Dr Xxxxxxx);
2. PDF file with “Settlement” letter and apology from the Deputy Chief Executive Debbie Power, Ministry of Social Development, which is undated, but was received on xx Xxxx 2012 (about 40 days after settlement was agreed to by me, and only received after my lawyer repeatedly “reminded” MSD of their commitment and obligation to present such a letter!);
3. PDF file with the list of submissions and evidence documents that I provided to your office in this matter of complaint C12HDCxxxxx, dated 02 July 2012; which contain relevant evidence;
4. PDF file with the ‘Designated Doctor List’ for such designated doctors and their qualifications, that MSD and Work and Income use as their “pool” of chosen assessors, 20 August 2012, it shows that they are almost exclusively general practitioners, and that there is NO psychologist available; all these have been, and get trained and instructed on an ongoing basis;
5. PDF file with position description for Health and Disability Coordinator, MSD, obtained by way of O.I.A. request, undated, likely from 2007, outlining also how such staff work closely with medical practitioners, by communicating the expectations and “services” by MSD and WINZ;
6. PDF file with position description for Principal Health Advisor, MSD, obtained through O.I.A. request, undated, likely from 2007 (yet still valid), outlining how this senior Advisor manages, mentors, instructs, trains, liaises and works with Regional Health or Disability Advisors, and to some degree also with designated doctors, GPs and other health professionals in general;
7. PDF file with ‘Medical Appeals Board – A resource for board members’, giving “official” information about the role, appointments, processes to follow and so forth, obtained through my lawyer in early 2012; it makes clear, that MSD choose, train and appoint the members; on page 19 it is written that only medical and work capacity aspects are considered by the MAB;
8. PDF file with article in NZ Doctor on Dr David Bratt, PHA for MSD and Work and Income, titled “Harm lurks for benefit addicts”, and quoting his comparisons between benefit dependence and drug dependence (!), fr. 01 August 2012;
9. PDF file with article in NZ Doctor, “Questioning the direction of MSD policy’, raising valid criticism about Dr Bratt and his biased position, by Tim Walker Nelson, from 29 August 2012;
10. PDF file with GP presentation by Dr Bratt, 2012, called ‘Medical Certificates are Clinical Instruments Too!’, in which he compares benefit receipt with drug dependence (see pages 3, 16 and 33), and also uses very selectively chosen statistics and presumed “research” findings;
11. PDF file with GP presentation by Dr Bratt, 2010, called ‘Ready, Steady, Crook, Are we killing our patients with kindness?’, in which Dr Bratt also compares benefit dependence to drug addiction (see pages 13, 20, 21 and 35), and again uses very selectively chosen statistics and supposed “research” findings, mostly coming from one known school of thought in the UK;
12. A PowerPoint presentation by Dr Bratt, titled ‘Pressure / No Pressure, Strategies for Pushy Patients’, see sheet/page 27 for his usual, biased comparison of benefit dependence to drug dependence!;
13. PDF file containing a scan copy of the signed original of this letter, dated 26 April 2013.

 

RE: ATTACHMENTS

The first two attachments will not be published here, as they cover legal matters and details that can due to a settlement agreement not be made public. The third attachment has already been made available futher above (with the original complaint letter from late June 2012). The remaining attachments are listed below (apart from the last one):
MSD, Designated Doctor List, complete, as in August 2012
MSD, O.I.A. Request, Health + Disab.Coordinator, pos. descrptn, highlighted points, Feb. 2007
MSD, O.I.A. Request, Princ. Health Advisor, position description, highlighted points, Jan. 2007
MSD, Medical Appeal Board, Resource for Bd Members, manual, undated, rec’d Jan. 2012
Dr D. Bratt, MSD, ‘Harm lurks for benefit addicts’, article, NZ Doctor, 01.08.12, scan, 18.08.2012
Dr D. Bratt, MSD, PHA, critical ltr by reader T. Walker Nelson, NZ Doctor, 29.08.2012
Fri_DaVinci_1400_Bratt_Medical Certificates are Clinical Instruments too – June 2012
C1 1515 Bratt-Hawker, ‘Ready, Steady, Crook – Are we killing our patients with kindness’, present’n, 2010
D-Bratt

COMMENTS:

As the reader of the above letter can see, the complainant in this matter had already made great efforts to inform himself about the way MSD and WINZ work, what processes were in place, and who he had to deal with (including those ones operating behind the scenes). Not only did he gather personal experiences during the MAB appeal process and then the preparation for a judicial review proceeding, with advice and guidance from a top lawyer, he obtained great insight into the way the system works, and he was also able to get further support from some committed advocates in the field. So equipped with all this, a good presentation was made to push for his case also before the HDC.

We do not need to elaborate much on the good, convincing arguments in his letter, they perfectly correspond with and prove what some of us have already written about on in various posts on this blog. Our friend has of course also been a valuable source of information, where we may have been in the dark, and there has been some productive exchange of information.

So with the above, he presented to the HDC not only his position on their truly appalling “decision”, he also presented them information about the Principal Health Advisor Dr Bratt, the fact that he has been “training” the WINZ ‘Designated Doctors’, that he has made bizarre claims, and that he is himself rather biased. The various information should show the HDC that serious questions should be asked re MSD’s and Work and Income’s treatment of beneficiaries with health conditions. Likening benefit dependence to “drug dependence” is in itself inappropriate conduct for a senior Health Advisor of the Ministry. Sufficient information is presented as evidence (see the attachments to his emails), and with challenging the view of the Commissioner, that the MAB would be the right place to have his concerns heard, he expected that all this must surely suffice to convince the HDC himself, to take another look at the complaint and what was presented with it.

Bear in mind though, at this stage the HDC has still withheld that first response by the ‘Designated Doctor’ that they received over half a year earlier (dated 20 Sept. 2012!).

 
 

PART 5 – THE COMPLAINANT’S REQUEST FOR OFFICIAL INFORMATION FROM THE HDC

 

But after sending that letter from 26 April 2013 the complainant remained highly concerned and suspicious about the Health and Disability Commissioner, and how his complaint had so far been treated. Hence he decided to send a further letter on 03 June 2013, asking for more specified information under the Official Information Act 1982. Previous negative experiences with the HDC Office, same with certain other official agencies and departments, had sharpened his senses. He wanted to make sure that he got all information and assurances that he could. An OIA request would also send the HDC a signal, that their conduct and actions were carefully being watched.

He was actually prompted to send such a further, more specified request, after receiving the following letter from the HDC Office (dated 28 May 2013):
HDC, Complaint, C12HDCXXXXX, Design. Dr, reply to OIA rqst, G. Rood, xx.05.2013

Georgina Rood, Legal Advisor, wrote in that response to a request for information (see bottom of the complainat’s letter from 26 April 2013):
“I have considered your request under the Official Information Act 1982 (the Act). To fully answer your request would require HDC to contact all current and former staff to question them on their relationship (if any) with Dr Xxxxxxx. I consider that this information cannot be made available without substantial collation or research by HDC staff.” She continued: “I therefore refuse your request under section 18 (f) of the Act.”

 

Here is the authentic transcript of the complainant’s Official Information Act request (dated 03 June 2013):

Xxxxxxx Xxxxxxx
Xxxx x
Xx Xxxxxxxxx Street
Xxxxxxxxx
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

03 June 2013

Attention: The Health and Disability Commissioner

Re: Complaint C12HDCxxxxx; request according to sections 12 and 16 of the Official Information Act 1982

Dear Madam / dear Sir,

Thank you for your letter dated 28 May 2013, from your Legal Advisor Georgina Rood, which I received in response to a request under the Official Information Act 1982 (The Act), which I made at the end of a letter to your office, which was dated 26 April 2013 (see page 9 under “P.S.”).

Your office has refused to provide the information I sought under section 18 (f) of the Act, stating that the information cannot be made available without substantial collation or research by your office. Your concern was that you would have to contact all present and former staff members of your office and question them re the information I sought. Therefore I have decided to make a new request for a much more limited range and form of specified information.

Please provide me with a full disclosure of previous or present contacts (personal, professional or other), that any existing (and/or former) staff member of the ‘Office of the Health and Disability Commissioner’, who has been directly involved in the assessment, processing and investigation of complaint C12HDCxxxxx, has had with Dr Dxxxx Xxxxxxx, general practitioner at Xxxxxxxx Health Centre. Dr Xxxxxxx has also worked as a xxxxxxxxx xxxxxxx at Auckland University’s Medical School.

If detailed contacts cannot be established, I expect at least a list of the names and confirmed or denied contacts for the present – and possibly also former – staff members of your office, and whether they were professional, work related or private contacts, and during what time periods these were.

In order to more conveniently facilitate a process of establishing such previous or present contacts, a draft form has been attached, which you may consider to present to those staff members who may fall into the categories mentioned above. They would thus not need to be interviewed individually, and could simply fill out the form to the best of their knowledge and sign this internally for your verification.

Please supply the information in clearly readable form of photo-copies, as printouts or as a completed, signed summary list. I insist on the release of this information as it is in the public interest.

Yours sincerely and thankfully

 

Xxxxxxx Xxxxxxx

 

Here is a link to a PDF containing the same, in perhaps more readable format:
HDC, Complaint, C12HDCXXXXX, Design. Dr, further O.I.A. rqst, anon, 03.06.13

 
 

PART 6 – THE HDC’S RESPONSE TO THE COMPLAINANT’S OFFICIAL INFORMATION ACT REQUEST

 

On 03 July 2013 the complainant received a response from the HDC’s Legal Advisor, Georgina Rood, which was dated 01 July and which gave answers to the complainant’s questions, whether any existing or former staff at the HDC Office, who had worked on his complaint, had any previous contact with the doctor he had complained about.

The response by HDC can be found under this link:
HDC, Complaint, C12HDCXXXXX, Design. dr, reply to OIA rqst, G. Rood, 01.07.2013

Georgina Rood wrote:
“I have considered your request under the Official Information Act 1982. My response to your request is set out below.”

“Your request”

“As a preliminary comment, please note that many of the staff who have been involved with your complaint file were only involved in peripheral ways, for example, by processing your incoming mail.

I have spoken directly with the staff members who have had contact with your complaint file, and who still work at HDC. They all confirm that they do not know Dr Xxxxxxx, and have had no contact with him other than through the HDC complaints process.

There are a small number of staff who had contact with your complaint file but who no longer work at HDC. I have decided to refuse your request for information in relation to these individuals under section 18(f) of the Official Information Act, as HDC does not hold any information about these individual’s knowledge of, or contact with, Dr Xxxxxxx. I have decided to withhold the names of the staff members who have had contact with your complaint file. These names are withheld under section 9(2)(a) of the Official Information Act, to protect the privacy of those individuals.

You may request a review of this decision from the Office of the Oubudsman.

Conflicts of interest
Please be assured that HDC has a robust process for managing conflicts of interest. Staff must declare any personal interests they have that may compromise (or appear to compromise) HDC’s impartiality. If an HDC staff member has a close personal relationship with a party involved in a particular complaint, they must disclose this to their manager so that the conflict can be managed appropriately.

Yours sincerely

Georgina Rood
Legal Advisor

 

COMMENT:
That may have sounded re-assuring to an ordinary person, but while there may be no staff working at the HDC who may have had a conflict of interest of that type, the complainant maintained a very cautious approach towards the HDC and their Office’s staff.

 
 

PART 7 THE ASSOCIATE COMMISSIONER KATIE ELKIN’S “FINAL” RESPONSE AND DECISION – FROM 17 SEPT. 2013:

 

It did again take a few more months until the HDC Office responded again, answering to the letter of the complainant from 26 April, which had been sent both by email and by ordinary, registered post. On 17 Sept. 2013 the Health and Disability Commissioner’s ASSOCIATE COMMISSIONER Katie Elkin presented this “final decision” on this complaint matter:

 

“Dear …….

 

Complaint: Dr Dxxxx Xxxxxxx

Our ref.: C12HDCxxxxx

 

Thank you for your letters dated 26 April 2013 and 30 April 2013. I apologise for the delay in responding to you. I understand that you are disappointed with the Deputy Commissioner’s decision to take no further action on your complaint.

Complaint
On 22 July 2012 you made a complaint about a Work and Income New Zealand (WINZ) related medical assessment conducted by general practitioner, Dr Dxxxx Xxxxxxx on 17 June 2010. You raised the following concerns:

* You stated that Dr Xxxxxxx’s conduct during the examination was inappropriate: his line of questioning resembled an interrogation rather than an examination, he was unsympathetic, he did not give you sufficient opportunity to explain your health issues, did not appropriately consider the evidence you provided, he conducted the examination with a prejudicial mindset, and the examination took only 12 minutes.
* You stated that Dr Xxxxxxx’s report to WINZ contained inaccurate information, and that his assessment and report were not evidence based, unfair, unprofessional and biased. You state that WINZ relied on Dr Xxxxxxx’s report, while ignoring other relevant medical information.
* You stated that Dr Xxxxxxx is not appropriately qualified to conduct an assessment of a client with your particular medical conditions.
* You stated that Dr Xxxxxxx did not follow the guidelines set out in the Ministry of Social Development’s resource manual, “Guide for Designated Doctors”.

In assessing your complaint this Office requested a response and information from Dr Xxxxxxx. Dr Xxxxxxx provided an initial response on 20 September 2012. This Office contacted Dr Xxxxxxx to ask him to provide a further response to address certain issues raised in your complaint that Dr Xxxxxxx’s initial response had not covered. That additional response was received from Dr Xxxxxxx on 27 November 2012.
On 24 April 2013 the Deputy Commissioner wrote to inform you of her decision to take no further action on your complaint, pursuant to section 38(1) of the Health and Disability Commissioner Act 1994 (the Act).

Your concerns
You have since written to this Office expressing your dissatisfaction with the Deputy Commissioner’s decison. You have raised the following concerns:

* The Medical Appeal Board (the Board) was not an alternate appeal option for you, because:
you believe that it is biased against claimants;
it cannot and does not address issues that this Office should address (for example, Dr Xxxxxxx’s conduct); and
you were not successful in your appeal to the Board, as the Deputy Commissioner appeared to believe.
* This Office did not put all your concerns to Dr Xxxxxxx.
* The Deputy Commissioner’s decision letter did not address all of your concerns.
* This Office did not consider all of the evidence you supplied in support of your complaint.
* Dr Xxxxxxx’s response was insufficient and only related to his “usual” conduct.
* This Office did not follow the principles of natural justice in considering your complaint.

My response
We have carefully considered all the information provided and thoroughly reviewed the file relating to your complaint. Having considered all the circumstances of this case, I am of the view that the Deputy Commissioner’s decision to take no further action on your complaint remains appropriate.

In relation to your concern that this Office did not appropriately consider the information you supplied, I am satisfied that all relevant information has been considered during the assessment of your complaint.

You also expressed concern that only part of your complaint was put to Dr Xxxxxxx. I can assure you that a copy of your entire complaint was provided to Dr Xxxxxxx by this Office on 18 September 2012. I enclose a copy of that letter, and of Dr Xxxxxxx’s initial response, for your information.

I acknowledge that complaints that relate to non-treating doctor contracted as an assessor to a third-party may fall within the Commissioner’s jurisdiction under the Act. However, I note that most of your concerns relate to the processes and policies of WINZ and of the Board. Such matters are outside the jurisdiction of this Office and are more appropriately dealt with by the agencies concerned, or through appeal rights to entities such as the High Court and the Ombudsman.

Even where jurisdiction can be established, the Commissioner and Deputy Commissioners have a number of options open to them in deciding how best to resolve such complaints. One such option is to take no further action pursuant to section 38 of the Act. The discretion under section 38 is wide and allows the Commissioner or Deputy Commissioners to decide to take no further action wherever they consider, in all circumstances, further action is unnecessary or inappropriate. I consider that the issues you raised which were within jurisdiction were considered by the Deputy Commissioner and were appropriately addressed in her decision.

Accordingly, your complaint will remain closed. Thank you for bringing your concerns to the Commissioner’s attention.

 

Yours sincerely

Katie Elkin

Associate Commissioner
Legal and Strategic Relations

 

Enc:
Copy of letter to Dr Xxxxxxx, 18 September 2012
Copy of Dr Xxxxxxx’s initial response, 20 September 2012″

 

Here is a scan copy contained in a PDF file with Katie Elkin’s “final” decision:
HDC complaint, WINZ Design. Dr, HDC’s decision confirmed, compl., K. Elkin, 17.09.2013
HDC complaint, WINZ Design. Dr, HDC’s decision confirmed, ltr, hilit, K. Elkin, 17.09.13

 

COMMENTS:

This letter from Katie Elkin, Associate Commissioner, and intriguingly in charge of “Legal and Strategic Relations” is one that deserves special attention. Apart from only marginally referring to the concerns of the complainant, by just summarising some of these, it simply reiterates what had been written in the earlier decision, and it is therefore just a repeat of their position. The apparent legal expert avoids bringing anything into discussion that the complainant raised in his letter from 26 April, particularly in regards to MSD’s and Work and Income’s Principal and Regional Health and Disability Advisors. There is no comment on the allegations that a ‘Designated Doctor’ like the one complained about may be biased or breaching the Code through misconduct, due to the “training” and guidance received from Dr Bratt.

Katie Elkin does in her response simply state that they “carefully considered all the information provided and thoroughly reviewed the file relating to your complaint”. She asserts: “I am satisfied that all relevant information has been considered during the assessment of your complaint.” She then refers to section 38 of the Health and Disability Commissioner Act and the wide discretion available for the Commissioners to take no action, “wherever they consider, in all the circumstances, further action is unnecessary or inappropriate.”

This is the particularly, smartly drafted provision in the statute, that is also used in the statutes that govern the functions and discretion in decision-making for the Privacy Commissioner and the Ombudsman. It is like a “magic open window of opportunity” for all these Officers of Parliament to take advantage of, when they decide, they cannot bother taking any action upon a complaint, for whatever reason. It enables them also to decide to not hold anyone to account, whom they rather would not wish to bother. And it is used generously all the time, without complainants having much of a chance to argue against their decisions. How would a complainant prove what information was really “relevant” or not, whether it had actually been “considered” or not, and how could one argue, whether anything was considered or not “in all the circumstances”? So the HDC’s other legal expert here, Ms Elkin, can simply state the decision that was made was “appropriate”.

And the following comment by the Commissioner can only be seen as a diversion from what the complaint was really about: “However, I note that most of your concerns relate to the processes and policies of WINZ and of the Board. Such matters are outside the jurisdiction of this Office and are more appropriately dealt with by the agencies concerned, or through appeal rights to entities such as the High Court and the Ombudsman.”

The complaint was not about WINZ and the Board, although issues with them were of course also being mentioned by the complainant, the issues raised with the HDC were about the Designated Doctor’s conduct.

Of particular importance is now of course also that first response from the ‘Designated Doctor’ from 20 Sept. 2012, that had the ‘Designated Doctor Report’ attached (from 17 June and 30 June 2010). Simply by comparing the report with the other medical information sent by the complainant to the HDC, the assessor and Commissioner(s) would see straight away, that there is a stark difference, and that the doctor complained about would indeed appear biased and also otherwise out of step. But the HDC appears to have shown NO interest in that. And only now did the complainant have a chance to read the letter from the ‘Designated Doctor’ from 20 Sept. 2012. The justified question is also, why was this left lying around for months, and NO action taken?

I do not need to explain, why the complainant was both extremely disappointed and indeed furious about this letter and “final decision”. He expressed his feelings, thoughts and concerns in a further letter, which will follow.

 
 

PART 8 – THE COMPLAINANT’S LETTER IN RESPONSE TO KATIE ELKIN’S “FINAL” DECISION

The complainant could not accept such a response and “final” decision as had been presented to him by Katie Elkin from the HDC. He realised that his complaint had not been assessed and decided on fairly and reasonably, and he sensed that the HDC was simply totally reluctant to involve himself or his Deputy or Associate Commissioners into a matter of a “third party medical assessor” making a controversial, flawed recommendation on a WINZ client with mental health and addiction issues. There appeared to be no other explanation for the Commissioner’s ignoring absolutely relevant facts, and to base a decision on rather irrelevant facts and inappropriate considerations, such as that a ‘Medical Appeals Board’ should be the body responsible for looking at an examining Designated Doctor’s unprofessional conduct, when it is only meant to look at medical and/or work ability related aspects.

So he did respond to the decision by Associate Commissioner Elkin by way of a new letter dated 22 September 2013. This is the transcript of his critical and challenging letter:

Xxxxxxx Xxxxxx
Xxxx xx
Xx Xxxxxxxxxx Street
Xxxxxxxxx
Auckland 1xxx

NHI: XXXxxxx
Phone: 09 xxx xxxx

Mr Anthony Hill
The Health and Disability Commissioner
Te Toihau Hauora, Hauatanga
Level 10, Tower Centre
45 Queen Street
(P.O. Box 1791)
Auckland 1010

22 September 2013

Attention: Mr Anthony Hill – The Health and Disability Commissioner, and Katie Elkin – Associate Commissioner (Legal and Strategic Relations)

Re: Complaint C12HDCxxxxx (breaches of the ‘Code of Health and Disability Services Consumers’ Rights’, the ‘Code of Ethics’ of ‘The Medical Association of New Zealand’ and legal provisions – by General Practitioner Dr Dxxxx Xxxxxxx); response to your final decision dated 17 Sept. 2013

Dear Health and Disability Commissioner, dear Katie Elkin

Upon receiving your letter dated 17 September, which was in response to my complaint to your office (dated 26 April this year) about an earlier decision by Deputy Health and Disability Commissioner Theo Baker (dated 24 April 2013), I am extremely shocked, dismayed and severely upset about your stated justifications to not further pursue the serious matter and fairly review that earlier decision.

It is to me an affront to be claiming, that the Medical Appeal Board that heard my appeal against a decision based on a totally flawed and biased assessment by Dr Dxxxx Xxxxxxx, was the appropriate institution to deal with the serious complaints and evidence I presented to your office.

A number of issues have simply not been addressed, although you claim that your office viewed all the relevant evidence presented to you. For instance nothing has been done to address the fact that Dr Xxxxxxx made an examination and assessment on a person with complex health conditions that do not fall under his scope of practice. Also has there been no action to address issues with Dr Xxxxxxx not abiding by the ‘Health Information Privacy Code 1994’ and the ‘Health (Retention of Health Information) Regulations 1996’. There has been ample documentary evidence presented to your office, showing that Dr Xxxxxxx breached the ‘Code of Health and Disability Services Consumer’s Rights’ and the ‘Code of Ethics for the New Zealand Medical Profession’.

I also presented you sufficient evidence showing the biased presentations that the Ministry of Social Development’s Principal Health Advisor Dr David Bratt is using to influence medical practitioners and other health professionals. All this should have raised the concerns of your office, as medical professionals are increasingly expected to compromise their codes of ethics in making assessments on sick and disabled, that rather meet the expectations of Work and Income than be truly independent.

It was explained to you what the role of a Medical Appeal Board is, and it is clear that it does not review many of the issues I raised with your office. Expecting persons suffering mental illness to use other legal remedies such as making claims through the courts is an unreasonable expectation, as lawyers are these days also very reluctant to take on work for persons like me on limited legal aid.

You have indeed destroyed the last tiny bit of trust and hope that I may still have had left in justice being applied in New Zealand! What I have experienced over the last few years has proved to me, that justice is in many cases just referred to as an empty word, as it is not being applied and honoured in many cases. Access to justice is made extremely difficult for persons with no or limited financial means, hence there is for very many affected no reasonable, manageable way to have disputes or grievances of the kinds I raised addressed. Even the Medical Appeal Board members are appointed by the Ministry of Social Development, so they are not as “independent” as they claim.

You leave me in a situation where I have to review all other means and ways to raise awareness for the issues I faced with a designated doctor, with the treatment dished out by Work and Income staff, and how you and your staff choose to distance yourself from responsibilities that you have and should honour. I have in the meantime learned about many other persons feeling not having been taken seriously by the Office of the Health and Disability Commissioner. Indeed it appears the small number of complaints that are ever addressed and reported on in the media is just a tiny tip of the iceberg, of what otherwise goes on in New Zealand. I am truly very shocked about what I have learned.

In the meantime designated doctors and the Ministry of Social Development are due to your inaction virtually encouraged to continue putting unacceptable pressures and expectations on sick and disabled, and also on medical and health professionals, to deliver outcomes they desire. So much for human rights and “justice” in New Zealand, I must say.

With thanks for your acknowledgment.

Yours sincerely

Xxxxxxxx Xxxxxx

 

And here is a link to a PDF file copy of that letter by the complainant (with sensitive details crossed out):

HDC, Complaint, C12HDCXXXXX, Design. Dr, Breach of Code, reply to fin. dec., 22.09.13

 
 

PART 9 – THE COMPLAINANT’S REQUESTS UNDER THE OFFICIAL INFORMATION AND PRIVACY ACTS

 

Given the appalling “decisions” be the HDC, to take no action, and to not investigate the complaint any further, the complainant felt his worst fears had been proven to be true, namely that the HDC cannot be trusted when it comes to honestly, fairly and reasonably upholding the rights of consumers of health and disability services under the Code he is meant to administer and enforce. As he also followed other media reports about HDC decisions, he knew that there are many other complainants who felt the HDC let them down.

In order to try and hold the HDC to account, he filed yet another request under the OIA, and this time also under the Privacy Act 1993. He knew that the HDC was bound by both statutes, so had to make certain information available. On 07 October 2013 he sent the following request to the HDC Office:

 

Here is the full transcript of that letter requestion information under the OIA and Privacy Act:

Xxxxxxx Xxxxxxx
Xxxx xx
XX Xxxxxxxxx Street
Xxxxxxxxx
Auckland 1xxx

 

The Health and Disability Commissioner
Te Toihau Hauora, Hauatanga
Level 10, Tower Centre
45 Queen Street
(P.O. Box 1791)
Auckland 1010

07 October 2013

Attention: The Health and Disability Commissioner

Re: Complaint C12HDCXXXXX: Requests according to sections 12 and 16 of the Official Information Act 1982 and under s 34 (and principle 6) of the Privacy Act 1993

Dear Madam / dear Sir,

Please receive my formal request for specified information under the Official Information Act 1982 and the Privacy Act 1993. I ask you to supply the below listed information in the form of good quality photo copies, system printouts or other easily readable documents, covering all of the information that was not yet covered and/or presented upon a previous request of this nature:

A. I request authentic copies of all correspondence (e.g. letters, emails, facsimiles), and any notes and transcripts of phone calls, exchanged between Dr Dxxxx Xxxxxxx and the Health and Disability Commissioner’s office in relation to this same complaint under the above reference.

B. I request authentic photo copies and/or printouts of all memos or other written communications exchanged between staff acting in relation to this complaint within the Health and Disability Commissioner’s offices (both Auckland and Wellington), same as existing file records, notes or transcripts of internal phone calls or formal discussions of any relevant aspects of this complaint.

C. I ask you furthermore for information on any contacts your office had in this matter with the Privacy Commissioner, with any staff members at the Ministry of Social Development (incl. Principal Health Advisor Dr Bratt), with Xxx Xxxxxx at ‘XxxXXXX Psychological Services’, with my GP, Dr Xxxxx Txxxxxxx, or with any other person. If any consultation or correspondence was conducted between your offices and these persons, I request authentic copies of this.

Please supply the information in clearly readable form as photo-copies of originals, system data printouts or other official types of records within the prescribed official response time.

Yours sincerely and thankfully

Xxxxxxx Xxxxxxx

 

By clicking the following link you will find an easier readable copy of that letter (again with sensitive details crossed out):

HDC, Complaint, C12HDCXXXXX, Design. Dr, O.I.A., Priv. Act requests, new, anon, 07.10.13

 
 

PART 10: THE HDC’S LEGAL ADVISOR’S RESPONSE TO THE OIA AND PRIVACY ACT REQUESTS

On 04 Nov. 2013 the HDC Office presented the following reply to the complainant’s OIA and Privacy Act requests from 07 October 2013:

 

“Dear Mr Xxxxxxxx

Complaint: Dr Dxxxx Xxxxxxx
Our ref: C12HDC0xxxx

Thank you for your letter of 7 October 2013 requesting certain information in relation to this complaint.

I have considered your request under the Privacy Act 1993 (the PA) and the Official Information Act 1982 (OIA). My responses to each of your requests are set out below.

All correspondence and any notes and transcripts of phone calls exchanged between Dr Dxxxxx Xxxxxxx and the Health and Disability Commissioner’s office in relation to this complaint.

I enclose the following documents:
● letter from HDC to Dr Xxxxxxx, dated 18 September 2012;
● letter from Dr Xxxxxxx to HDC, dated 20 September 2012;
● file note of phone call from HDC to Dr Xxxxxxx, dated 22 November 2012;
● letter from Dr Xxxxxxx to HDC, dated 22 November 2012;
● letter from HDC to Dr Xxxxxxx, dated 27 November 2012; and
● letter from HDC to Dr Xxxxxxx, dated 24 April 2013.

There is no record on file of any other communications between HDC and Dr Xxxxxxx in relation to this complaint.

I have removed Dr Xxxxxxx’s Medical Council registration number from those documents pursuant to section 9(2)(a) of the OIA, in order to protect his privacy.

All memos or other written communications exchanged between staff action in relation to this complaint within HDC’s offices (both Auckland and Wellington), including file records, notes of transcripts of internal phone calls or formal discussions

I enclose the following documents:
● ‘New Complaint (Triage)’ form, dated 30 July 2012;
● file note of a discussion between Senior Complaints Assessor, Axxxx Jxxxxx and Complaints Assessment Manager, Deborah O’Flaherty, dated 18 December 2012;
● forwarded email, dated 22 April 2013;
● forwarded email, dated 29 April 2013; and
● file note of a visit by you to HDC’s Auckland office, dated 20 September 2013.

I have removed the names of HDC staff members from the internal emails released to you, pursuant to section 9(2)(a) of the OIA; in order to protect the privacy of those individuals.

I have removed information from the ‘New Complaint (Triage)’ form pursuant to:
● section 9(2)(g)(i) of the OIA, in order to maintain the effective conduct of public affairs through the free and frank expression of opinions between HDC employees in the course of their duty; and
● section 9 (2)(a) of the OIA, in order to protect Dr Xxxxxxx’s privacy.

The following documents have been withheld in their entirety pursuant to section 9(2)(h) of the OIA, and section 29 (1)(f) of the PA, in order to maintain legal professional privilege:
● requests for legal advice from HDC staff to HDC’s legal team, and legal advice provided by members of that team;
● a file note prepared by a a member of HDC’s legal team, dated 1 July 2013; and
● communications between a member of HDC’s legal team and other HDC staff, dated 28 June 2013 and 1 July 2013.

There is no record on file of any other communications between HDC staff in relation to this complaint.

Information on any consultation or correspondence, in relation to this complaint, between HDC and:
● the Privacy Commissioner;
● the Ministry of Social Development (including Principal Health Advisor, Dr Bratt);
● Sxx Xxxxxx at XxxXXXX Psychological Services;
● General Practitioner Dr Xxxxx Txxxxxx; or
● any other person.

There is no record on file of contact between HDC and any of those parties in relation to this complaint. The records on file show that the only contact with external parties in relation to this complaint has been with you, and with Dr Xxxxxxx.

Conclusion
You may seek a review of this decision from the Office of the Ombudsman or the Privacy Commissioner.

Please note that pursuant to Principle 7 of the Privacy Act, you may request correction of your personal information.

Yours sincerely

Georgina Rood
Legal Advisor”

 

And under this following link you can find an PDF file with the authentic scan copy of Georgina Rood’s letter from 04 Nov. 2013 (again with sensitive information whitened out for legal and privacy reasons):
HDC complaint, WINZ Design. Dr, HDC’s OIA + Priv. Act resp., hilit, anon, 04.11.13

Of the range of documents that were released, most have already been published above (i.e. correspondence from and to the HDC), and some others share little or no additional information. Only the following is worth to publish here also (with some details whitened out for legal and privacy reasons):

The ‘New Complaint (Triage)’ form (updated 30.07.12):
HDC, C12HDCXXXXX, Design. Dr, Breach of Code, HDC Triage form, anon, 22-30.07.2012

HDC, C12HDCXXXXX, Design. Dr, Breach of Code, HDC Triage form, hi-lit, 22-30.07.12

An internal record on a phone call by the ‘Desginated Doctor’ to HDC (fr. 22.11.12):
HDC, C12HDCXXXXX, Design. Dr, Code breach, ph. record, Des. Dr call, hilit, 09.49h, 22 Nov. 2012

An internal record of a discussion between the HDC’s Senior Assessor and Complaints Assessment Manager (from 18.12.12):
HDC, C12HDCXXXXX, Design. Dr, O.I.A. + Priv. Act rqst, internal disc. notes, 18.12.12

 

COMMENTS:

With such OIA and Privacy Act responses, also the complainant knew, that it is more important to look at what was withheld and refused as information, than what was actually made available. From the comments by the Legal Advisor it becomes totally clear, that the Commissioners and possibly other HDC staff sought and received legal advice. From the notes made on 18 December 2012 it becomes apparent that already then the HDC considered to take no action (as possible under section 38 of the Act). But the complaint was left lying in their office for further months, until Theo Baker would decide to let the Designated Doctor “off the hook”, and presented her decision to the complainant.

 
 

PART 11 – THE HDC’S TRULY FINAL DECISION, UPON SUPPOSED “REVIEWS” OF THE COMPLAINT

 

It took a few more weeks, until the complainant was then presented the very final “decision” by the HDC, again by Katie Elkin, in charge of ‘Legal and Strategic Relations’. Here is her letter dated 22 Nov. 2013, first with the authentic transcript (without the doctor’s name and sensitive details):

 

Dear …..

 

Complaint: Dr Dxxxx Xxxxxxx
Our ref: C12HDCxxxxx

Thank you for your letter of 22 September 2013. I understand that you remain disappointed with the Deputy Commissioner’s decision on this complaint.

Your concerns
You remain of the opinion that certain aspects of your complaint, and the evidence you provided in support, were not appropriately considered by the Deputy Commissioner in reaching her decision to take no further action. In your most recent correspondence you point specifically to the following aspects of your complaint, which you consider have not been addressed:
* your contention that Dr Xxxxxxx did not have the relevant experience to assess you, and in doing so was acting outside his scope of practice;
* Dr Xxxxxxx’s compliance with the Health Information Privacy Code 1994 (the HIPC), and with the Health (Retention of Health Information) Regulations 1996 (the Regulations);
* the “bias” demonstrated by the Ministry of Social Development’s Principal Health Advisor; and
* the role of the Medical Appeals Board.

My response
We have again reviewed your file in light of your most recent letter. I remain of the opinion that the Deputy Commissioner’s decision remains appropriate in the circumstances, and there is no basis to reopen your file.

As has been explained in previous correspondence, complaints that relate to a non-treating doctor contracted as an assessor to a third-party may fall within the Commissioner’s jurisdiction. However the Commissioner and the Deputy Commissioners’ discretion to take no further action on a complaint is wide. I remain of the opinion that the discretion was exercised appropriately in this case, and that it was more appropriate for WINZ, as the third-party contracting Dr Xxxxxxx to provide an assessment, to address your concerns about his assessment of you.

As has also been explained previously, the processes and policies of WINZ, the Ministry of Social Development, and of the Medical Appeals Board are outside the jurisdiction of this Office.

Please also note that the Commissioner does not have jurisdiction to consider issues relating to information privacy. Your concerns about Dr Xxxxxxx’s compliance with the HIPC and the Regulations are therefore best addressed by the Office of the Privacy Commissioner. You can contact the Privacy Commissioner by phone on 0800 803 909, or via their website: http://www.privacy.org.nz.

Conclusion
While I understand that the Deputy Commissioner’s decision was not the outcome you had hoped for, I do not consider that your latest correspondence provides any basis to reconsider that decision.
I do not consider that further consideration of this complaint would be productive.
Yours sincerely

Katie Elkin

Associate Commissioner
Legal and Strategic Relations

 

And here is a link to the PDF containing a scan copy of that letter to the complainant:

HDC complaint, WINZ Design. Dr, HDC’s final review and decision, K. Elkin, 22.11.2013

HDC complaint, WINZ Design. Dr, HDC’s final review and decision, K. Elkin, hilit, 22.11.13

 

COMMENTS:
So we can see how the complainant was simply presented more of the same, that the HDC considers the Medical Appeals Board to be the more appropriate institution to deal with most issues, yes the HDC now consider that the complaint and concerns by the complainant are largely “out of scope” of their jurisdiction. Re other related complaint matters the complainant now even gets referred on to the Privacy Commissioner! And at the end the Associate Commissioner makes clear, that she considers further consideration of the complaint to not be productive.

In our humble view this is a complete, with legal “advice” achieved and backed “white-wash”! As we now know, this was actually proposed to not be dealt with by the HDC by the doctor himself (see his letters from 20 Sept. and 22 Nov. 2012), and it was adopted as the “solution” by the senior Assessor staff within the HDC already on 18 Dec. 2012, right before the Christmas and summer holiday break. And with her already preconceived “decision” Theo Baker did after the holidays try to rid herself of this case, with her legalistic, yet unconvincing arguments that no investigation was appropriate. As the complainant would not accept her explanations and position, the HDC was forced to use all available legal expertise to get rid of him, essentially basing their position on the comments by the Designated Doctor and questionable legal arguments.

The complainant gave up on the HDC, and would later take the matter further to the Office of the Ombudsmen. We endeavour to cover that with another post in the not too distant future.

 
 

PART 12 – CONCLUSIONS THAT CAN BE DRAWN FROM THE BIZARRE COMPLAINT HANDLING BY THE HDC

 

The handling of this complaint raises a number of very serious questions, concerns and issues. It may be a case where the particular aspects of the complaint could be seen by some as being somewhat “difficult” to assess and decide upon. That is, because it involves a person with complex mental health conditions. But in all honesty, we should be able to expect the HDC to treat all complaints the same and most certainly objectively, fairly and reasonably, by following due diligence and by applying natural justice principles. When looking at the way this matter has been handled, it can only be considered as having been assessed and decided on in an appalling manner.

The complainant presented honest, well articulated and well presented concerns about the apparent misconduct of a general practitioner (GP), acting as a ‘Designated Doctor’ for Work and Income NZ (WINZ). The GPs responsibilities were clearly to examine the person on aspects of his particular medical conditions, on the disability arising from such, and on resulting capacity or incapacity to work (see the then applicable old sections 44 and 54B of the Social Security Act 1964). He should have strictly adhered to the ‘Code of Health and Disability Services Consumers’ Rights’ mentioned under section 19 and 20 of the ‘Health and Disability Commissioner Act 1994 (HDC Act). He should also have respected and followed the Code of Ethics of the New Zealand Medical Profession, and he should as well have followed the ‘Guide for Designated Doctors’ that the Ministry of Social Development (MSD) has issued for ‘Designated Doctors’.

The Codes just mentioned, and even the ‘Guide’ provided by MSD, stipulate clear rules and guidelines to follow for a doctor like the one complained about, and by looking at the evidence presented to the HDC, the doctor did clearly not abide by the rules and guidelines. There was ample documentary evidence provided to the HDC to prove this, but instead, the HDC only picked one ‘Right’, being ‘Right 5 – Right to effective communication, to ask the Designated Doctor to comment on. All other Rights that were also breached were left aside or ignored, and most of the evidence presented was apparently also considered as irrelevant, as otherwise the assessment and decision by the HDC would have been a different one.

It appears rather that the HDC, his Deputy and Associate Commissioner simply pick and choose what they may consider warranting a closer look at, based most probably on the potential for public anger that non-action may otherwise cause. So when it comes to a matter where there was no fatality, no serious physical injury, and no easily provable harm caused, such like psychological or emotional harm, as was mainly the result in this case, then the HDC appears likely to not bother investigating, or to take any other significant action.

The HDC will nevertheless make an initial assessment of the complaint, which is required and provided for under section 33 of the HDC Act. But already section 33(1)(b) provides the HDC with the option to decide, whether to take no action on a complaint.

And as the complainant was already known to the Commissioner and his Deputy Theo Baker, who had dealt also with an earlier complaint by him against a counsellor a year before, there appears to have been an extra reluctance, and thus a bias to not investigate this complaint. The complainant had already “dared” to take issue with the handling of his earlier complaint, which was just as valid as this complaint, but that did not go down well with the HDC.

That other complaint may later also be presented by us in a separate post, provided we have the time and resources to do so. It does though get mention in a decision on a complaint to the Office of Ombudsmen, where for peculiar reasons two complaints against the HDC were dealt with in the same process by that Office. That Ombudsman complaint matter is planned to be covered by a future post anyway. So readers following this blog will get some idea about what that complaint entailed, and where the HDC abysmally failed also.

In any case, the above post shows exactly what key role and powers the HDC holds as a “gate-keeper” for medical and disability related complaints, as all consumers of such services are under the ‘Health Practitioners Competence Assurance Act 2003’ expected to file their complaints first with the HDC, before the matter may be heard and dealt with by an authority such as the Medical Council. Section 64 of that Act states rather clearly, that when the responsible authority receives a complaint from an affected health consumer about an alleged conduct or practice of a health practitioner, then it must promptly forward that complaint to the HDC. That means any consumer of health and disability services must raise any problems that arose due to a breach of the Code first with the HDC. So if the Medical Council or any other responsible authority receives a complaint instead, that authority will forward the consumer’s complaint to the HDC anyway. The HDC does though later have the option to refer a complaint matter, where a breach of the Code has been established, either to the HDC’s Director of Proceedings, or directly to an authority like the Medical Council. But if NO breach of the Code has been established or identified by the HDC, and when no investigation takes place, then the consumer will have no means to take any complaint further, as her/his hands are tied, due to the statutory and regulatory provisions that cover these areas.

This gives the HDC an immense amount of power to decide which complaint gets investigated and may be referred to an authority like the Medical Council, and which won’t. And as section 38 of the Health and Disability Commissioner Act 1994 gives the HDC a very wide discretion for deciding to take no action or no further action, the consumer is left totally dependent on the HDC and their inclination to decide on her/his complaint. Section 38 (1) states the following:
“At any time after completing a preliminary assessment of a complaint (whether or not the Commissioner is investigating, or continuing to investigate, the complaint himself or herself),
the Commissioner may, at his or her discretion, decide to take no action or, as the case may require, no further action on the complaint if the Commissioner considers that, having regard to all the circumstances of the case, any action or further action is unnecessary or inappropriate.”

While subsection (2) of the HDC Act offers the HDC a range of matters to “consider”, subsection (3) states this: “(3) Subsection (2) does not detract from the generality of subsection (1).”

So the HDC can use a wide range of considerations to take no action or no further action, while “having regard to all the circumstances of the case”, and where such action or further action is “unnecessary” or “inappropriate”. That leaves the HDC with so much discretion and scope for his interpretation of matters and circumstances relating to a complaint case, when deciding what may warrant taking no action, it is easy for the HDC to liberally take advantage of the law. Some will say though, it does too easily allow for the potential abuse of discretion. And the generous provision for using discretion is exactly why only a small percentage of all complaints filed with the HDC are ever investigated. Advocacy and other forms of “complaint resolution”, same as “education”, are also preferred actions by the HDC. Hence medical and health practitioners do mostly have little to fear from the HDC, apart perhaps from some damage to their reputation, where their names will be revealed.

The only way a complainant can challenge the HDC’s decision is, if there are genuine questions or errors of law in the decision made, so a judicial review can be applied for. Alternatively a complaint to the Ombudsman is possible, but as experience has shown, the Ombudsman does also have a very limited scope to act, and at best can only make a recommendation, which is also not binding. And as the Ombudsman has also very much discretion to investigate or take no action, there is only a minimal chance of a complaint to the Ombudsman succeeding in any recommendation to the HDC. While section 14 of the Ombudsmen Act 1975 lists the functions of that Officer, and while it provides for the Ombudsman to investigate decisions and recommendations made by administrators covered by the Act, section 17 gives the Ombudsman much discretion to refuse to investigate a complaint.

Section 17 states:
“(1) An Ombudsman may—
(a) refuse to investigate a complaint that is within his jurisdiction or to investigate any such complaint further if it appears to him that under the law or existing administrative practice there is an adequate remedy or right of appeal, other than the right to petition the House of
Representatives, to which it would have been reasonable for the complainant to resort; or
(b) refuse to investigate any such complaint further if in the course of the investigation of the complaint it appears to him that, having regard to all the circumstances of the case, any further investigation is unnecessary.
(2) Without limiting the generality of the powers conferred on Ombudsmen by this Act, it is hereby declared that an Ombudsman may in his discretion decide not to investigate, or, as
the case may require, not to investigate further, any complaint if it relates to any decision, recommendation, act, or omission of which the complainant has had knowledge for more than
12 months before the complaint is received by the Ombudsman,
or if in his opinion—
(a) the subject matter of the complaint is trivial; or
(b) the complaint is frivolous or vexatious or is not made in
good faith; or
(c) the complainant has not a sufficient personal interest in the subject matter of the complaint.”

In this complaint the HDC has with their decision effectively blocked the complainant from taking any further action, as he had no financial means to afford legal representation, and as he would most likely not have succeeded with a judicial review, given the wide scope for discretion the HDC has under the HDC Act. The only alternative option available to him was to make a complaint to the Ombudsman, which later proved to be a path that was full of other hurdles, and that did then later not succeed anyway. The HDC was able to give primary consideration to the respondent doctor’s own presented statements, and by using his/her discretion, able to throw this complaint out, apparently considering other evidence from the complainant as “less relevant” (despite of compelling documentary evidence). Thus the HDC protected the senior GP, who has also had some past involvement with Auckland University, from any criticism and questioning of his professional conduct and competency.

Information contained in the doctor’s letter to the HDC from 20 September 2012, and also in his letter from 22 Nov. 2012, reveals though, that there appears to be some collaboration between MSD (WINZ) and the HDC. It appears that a form of agreement exists, where the HDC will not take any action on examiners or “third party assessors” working for WINZ, and simply refer matters back to WINZ or their Medical Appeals Board, to deal with. We have heard of similar arrangements or agreements existing between the HDC and ACC.

From this complaint we can summarise the following important points:
● the HDC picked only “Right 5” as an apparently easy or “soft” potential breach of the Code to follow up, all else was more or less dismissed as irrelevant or out of scope;
● the HDC did not consider all evidence as they should have, as the documented medical history and presentations made at the time of the examination, and being available during completion of the ‘Designated Doctor Report’, show very clear contrasts between that report, and on the other hand the complainant’s own doctor’s plus other specialists’ reports
● the HDC used defensive, legalistic arguments to excuse themselves for not needing to look at the greater picture, i.e. the breaches of conduct by the GP in relation to various codes and legal provisions
● the written responses by the complained about doctor reveal some collaboration between ‘Designated Doctors’, MSD and the HDC, which assists them to shift around legal accountability for their separated responsibilities and actions
● With their first decision, and for a long time into the complaints process, HDC withheld the GP’s original response (from 20 Spet. 2012) from the complainant, one must presume, because they feared that the reasons for their decision to not investigate the complaint further may be exposed
● The HDC very heavily relies on the extremely wide and generous provisions of section 38 of the HDC Act to use every opportunity to take no (further) action, and to thus keep complaints that are investigated at a minimum, which results also in keeping medical practitioners and other health professionals protected from further investigation by authorities such as the Medical Council
● When challenged about their unacceptable handling of complaints, HDC swiftly involve internal Legal Advisors to dismiss complainants’ concerns with legal arguments, to take no action, sending also the message, they will not consider matters any further

Although this particular, comprehensive complaint may be of a type that may differ from many other ones the HDC receives, it nevertheless shows how the HDC does act more generally, in the handling of many, if not most complaints.

Some people have over the times also raised concerns about the appointment of the HDC, and Wikipedia write the following on the present HDC:
The Current Health and Disability Commissioner
Anthony Hill, Health and Disability Commissioner, began his term in July 2010. Mr Hill is committed to a consumer centred and engaged system, that is integrated in its care, focussed on safety and quality, and which encourages communication and learning.
Mr Hill came to the HDC after six years as a Deputy Director-General of Health. During that time he had oversight of the funding and performance of the District Health Boards (then $12b), and a range of health crown entities, including Pharmac, the New Zealand Blood Service, and the HDC. His regulatory functions included Medsafe, the National Radiation Laboratory, and HealthCert.
He has in-depth experience of the health and disability sectors, and began his 15-year tenure with the Ministry of Health as Chief Legal Advisor. Mr Hill has practised law in both private and public sectors. He holds bachelor’s degrees in Law and Commerce from the University of Canterbury and Master of Laws from the University of Virginia. [3]

Here is a link to the Wikipedia entry on the HDC:
https://en.wikipedia.org/wiki/Health_and_Disability_Commissioner

So the present HDC has a long career in the health sector behind him, and is equipped with good, in-depth medico legal expertise and knows the government funded, and partly privately contracted services in New Zealand inside out. He is likely to have established many personal relationships with leading health board and other administrators and medical and health practitioners. The question arises, is a person who has over so many years played an integral role in running and administering the largely publicly funded health sector the right kind of appointment for the position of HDC, as he may perhaps be inclined to be too favourable towards “supporting” and protecting the vested interest parties in that sector? I leave it to the readers to make their own judgments on this.

Other concerns were expressed in an article in the ‘Otago Daily Times’ from 21 December 2011, where Stuart McLennan expressed his concerns about whether the independence of the HDC had been put into question by having certain potentially biased persons appointed to a panel that selected the suitable candidate. The article is found via the following link:
„Independence of commissioner paramount“
http://www.odt.co.nz/opinion/opinion/191661/independence-commissioner-paramount

The following text extract speaks for itself:
“As with any quasi-judicial office, impartiality and independence is essential for the HDC. The commissioner must be seen to be independent of the interests of provider and consumer groups. The process for appointing the commissioner should, therefore, be uncontaminated by even a perception of bias.

It is therefore concerning that the interview panel that was convened in the selection of the current commissioner clearly had a perception of bias with the inclusion of health provider representatives.

The panel comprised the director-general of health, and three others nominated by Minister of Health Tony Ryall – Pat Seymour, a lay member of the Nursing Council of New Zealand who has previously been involved as a member of hospital and health boards, and who sits on the National Party’s board of directors; Pamela Jefferies, the former chief commissioner of the Human Rights Commission and a former member of Wairarapa DHB; Des Gorman, a doctor, of Health Workforce New Zealand and, at the time, head of the University of Auckland’s School of Medicine (Prof Gorman was also, at the time, a member of the Medical Protection Society [MPS] New Zealand Advisory Panel, a position that was declared).

Of particular concern is Prof Gorman’s involvement given his position on the MPS New Zealand panel at the time. The primary aim of the MPS is to protect and safeguard the professional reputations of individual members and the professions to which they belong, by assisting doctors with specific problems that arise from their clinical practice and lobbying for doctors’ interests in the regulatory environment. In the New Zealand context, this includes doctors who have a complaint to the HDC against them.”

And also when looking at the CV of Deputy Health and Disability Commissioner Theo Baker on her ‘Linked In’ profile, then we can also see that she has as a professional lawyer been sitting on both sides of the fence. When working in the UK in 2010 to 2011, she was working as a ‘Senior Lawyer’ for ‘Capsticks LLP’, a leading law firm that has in the past represented agencies and employers of the National Health Service (NHS) in the UK, for instance also in cases where patients made claims against doctors who allegedly committed medical misadventures or professional misconduct:
Senior Lawyer
Capsticks LLP
March 2010 – April 2011 (1 year 2 months)”

https://nz.linkedin.com/pub/theo-baker/61/301/b64

Apart from that Ms Baker has since 2000 made a “career” in a couple of senior roles at the Health and Disability Commissioner Office. She is like Mr Hill an expert in the law covering health and disability related matters, and she will be well familiar with relevant statutory and case law, thus having the knowledge to make decisions that will be hard for laypersons to challenge.

And there we have the major challenge for the ordinary complainant to the HDC, that is the lack of legal knowledge and expertise, to know how to present a complaint in an effective and convincing manner, which means, that most complainants will not have much of a leg to stand on, when their complaint is dismissed as deserving no action or no further action. Only with legal representation may someone have a chance to impress the HDC, and then it is still extremely hard to build a case, given the generous provisions for discretions, which we have already mentioned above.

In summary, the HDC appears to rather be serving as nothing much more than a monitoring “watchdog” that mostly takes no action, or at best makes recommendations for improved practices, for more training and consultation with health and disability consumers. Most of these “recommendations” resemble little more than “a slap on the wrist with a wet bus-ticket”, when directed at health professionals. It appears that the Office of the HDC was set up with the intention to just keep an eye on what areas may need to be looked at, to improve services in the health and disability sectors, rather than actually uphold and firmly enforce the rights of affected complainants. There have been very few cases where medical and health professionals faced serious professional consequences, by also being held to account by the Director of Proceedings, the Medical Council or other authorities.

What is needed is a radical reform of the Health and Disability Commissioner Act 1994, to introduce new, additional powers and a mandatory requirement for the HDC to take certain actions, and to impose some disciplinary sanctions on practitioners who breach the Code in at least certain serious, specified situations. Otherwise the HDC will continue to lose public respect and its reputation, which have already been seriously damaged in the eyes of an increasing number of persons that have had any dealings with the HDC Office.

I recommend that readers also read an earlier post on the issues that exist with the HDC, found under this link:
https://nzsocialjusticeblog2013.wordpress.com/2014/05/27/health-and-disability-commissioner-can-we-trust-in-hdc-independence/

 

Marcus

 

Updated on 11 October 2015

 
 

P.S.:
Any persons facing an examination by a WINZ ‘Designated Doctor’ or ACC Assessor would also be well advised to read the following document issued by the ‘NZ Medical Council’:

‘Non-treating doctors performing medical assessments of patients for third parties’ (2010)
https://www.mcnz.org.nz/assets/News-and-Publications/Statements/Non-treating-doctors.pdf

Take note of paragraphs 4, 5, 8, 9, 10, 12, 15, 16 and 21. Of particular interest in relation to this post are also paragraphs 23 and 24!

 
 

ADDENDUM: WHERE IT ALL ENDED – A LONG JOURNEY SEEKING JUSTICE, ALL IN VAIN (added 02 December 2015):

The above complaint and how it had been handled, was presented to the Ombudsman, who also saw no reason to investigate. So the complainant took the matter further to the Office of the Auditor General (OAG), as part of a request for an inquiry and special audit of the Office of Ombudsmen. The OAG could not be bothered nor could after that the Speaker of Parliament, despite of the evident problems with under-funding and other issues at the HDC Office and Ombudsman’s Office.

Here are links to PDF documents showing how the journey ended for the complainant:
Speaker of Parliament, Complaint abt Ombudsman, HDC complt handling, anon., xx.05.15

Speaker, House of Repr., Complaint abt Ombudsman Office, reply, anon, 25.08.15

Speaker, House of Repr., Complaint abt Ombudsman Office, reply, anon, hilit, 25.08.15

Speaker of Parliament, Complaint abt Ombudsman, rqst f. inquiry, reply to dec., anon, 05.09.15

 

If you have read all the above, you will know where what kinds of problems lie. Work has started on another post or two, that will reveal what happened on that journey, including how the Ombudsman also makes “bizarre” decisions. We hope to present more soon.

 

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MENTAL HEALTH AND SOLE PARENT EMPLOYMENT SERVICES – MSD WITHHOLDS O.I.A. INFORMATION, THAT MAY PROVE THEIR TRIALS A FAILURE


MENTAL HEALTH AND SOLE PARENT EMPLOYMENT SERVICES – MSD WITHHOLDS O.I.A. INFORMATION, THAT MAY PROVE THEIR TRIALS A FAILURE

 
 

Contents:

A) Introduction

B) O.I.A. response from MSD dated 26 February 2015

C) Information that has not been provided by MSD

D) Interpretation of – and conclusions from – the obtained information

E) Final conclusions

 
 

A) Introduction

In an earlier post we presented some comprehensive information about the Ministry of Social Development’s (MSD’s) newly introduced, contracted ‘Mental Health Employment Services’ (MHES) and also ‘Work Ability Assessments’ (WAA). That post contained a large volume of revealing information that had been obtained through a number of requests under the Official Information Act 1982 (O.I.A.). Other valuable information was found from various reliable sources via extensive online and other research. A thorough analysis was provided to make sense of the information.

Part “E).” of that post, titled “OFFICIAL INFORMATION ACT REQUESTS AND ANSWERS RECEIVED FROM MSD”, contained some new and some older information that had been provided by MSD. Under Part “E.1.:” O.I.A. requests from 16 January 2014 were presented alongside MSD’s answers from 24 April 2014. Part “E.3.:” “Earlier O.I.A. request and replies from MSD” provided further information from MSD, that also revealed details about MSD’s ‘Designated Doctors’, Regional Health Advisors (RHAs), Regional Disability Advisors (RDAs), Health and Disability Coordinators (HDCs), the Principal Health Advisor (PHA) Dr David Bratt and Principal Disability Advisor (PDA) Anne Hawker. That particular information was in response to specified requests from late December 2010 – with answers from March 2011, and yet further requests and information provided up to 12 July 2013. The information also included details about “designated doctor training”, which offered a glance at how MSD actually works with their selected pool of doctors, used for conducting medical examinations and assessments in the form of “second opinions”. More revealing information on that particular topic had already been obtained elsewhere, showing that ‘Designated Doctors’ can hardly be as “independent”, as is usually claimed by MSD and Work and Income NZ (WINZ).

 

Here are a few links that take you to the earlier parts of that very insightful, informative post:

https://nzsocialjusticeblog2013.wordpress.com/2014/06/21/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-a/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-b/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-c/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-d/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-e/

(see more parts of that major “post” on ‘nzsocialjusticeblog2013’)

 

In order to keep track on what is happening with the “trials” that MSD has started running for the above mentioned services, and to also seek further important information, a further O.I.A. request was made by a trusted person on 01 October 2014 (sent by email 02 October). New up to date information was requested regarding the Mental Health Employment Service (MHES), for the separately run Sole Parent Employment Service (SPES) and re a range of other matters of major concern. It took MSD nearly 5 months to finally respond to that request in writing on 26 February 2015. Some asked for information was once again either being withheld under section 18 of the O.I.A., or simply not provided at all, without any explanations. Besides of some additional, new information relating to the MHES, MSD did present some information on the ‘Sole Parent Employment Service’ and re a few other important matters. This information has now been made available to us, by the requester who wishes to remain anonymous.

In the following we present the newly obtained information, primarily relating to the MHES and SPES. Some of the other information is also very revealing and interesting, showing how MSD does not seem to be too concerned about the wellbeing of clients referred by WINZ to outside providers. There is furthermore solid information showing how sanctions for obligation failures have basically “exploded” since the new welfare reform became effective in mid July 2013. Other information shines light on the increase of inappropriate abuse, threats and even assaults that WINZ staff suffer, which can only be explained through the draconian measures that have over recent years been enforced. WINZ staff are working at the coal-face and therefore face the brunt of client frustration and anger.

 
 

B) O.I.A. response from MSD dated 26 February 2015

The new information seems to show, that the so-called MHES providers do not appear to be delivering the outcomes that were anticipated and that were so often promised as the expected outcomes by the Minister or MSD spokespersons. Some earlier up-beat comments to media and the public have not been backed up with any reliable figures. For instance did MSD’s Director for Welfare Reform, Sandra Kirikiri, announce on ‘Nine to Noon’ on Radio NZ National on 15 April 2014, that the trial for the MHES had up until then been so successful, that MSD and WINZ were planning to expand the service to reach more clients with “common” mental health problems.

http://www.radionz.co.nz/national/programmes/ninetonoon/audio/2592666/winz-expands-scheme-tosupport-unemployed-with-illness-issues

The newly obtained figures, which are admittedly a bit unclear and can only explain so much, do though appear to show us another picture. That is unless the figures supplied with the new O.I.A. response are not just for the month October 2014, but for the whole time period since the introduction of that “service” in September 2013. In that latter case the outcomes would not look all that negative. But as the response by MSD raises more questions than answers, a clarification on the figures has been sought from MSD, by way of a complaint to the Ombudsman. That complaint also raises issues with the withholding of other information, some without any explanations. As an earlier OIA response from MSD dated 24 April 2014 (see attached PDF with a copy, re question/answer number 5, page 3) mentioned that 328 participants had (as at 27 Jan. 2014) ended their participation with a provider, and only 65 had been placed into jobs, the newly provided figures from 26 February this year seem to indicate that they do NOT cover the whole period since the MHES started in late 2013.

MSD did actually not fully answer question 4 from the request dated 01 October 2014, and has given NO figures on how many participants had actually been placed into jobs. Anyway, at the end of October 2014, out of 534 fully enrolled participants, it was 365 of them who “exited” the service due to “end of 6 months service” and 40 who did so due to “medical reasons”. A number of participants left the service for a various other reasons. Again, without any figures for successful employment placements it is impossible to properly establish the “success” of the service. But it seems that MSD is intentionally withholding information, or is presenting it in a way to confuse the situation. It is certainly very hard to believe that out of the total of 2,577 persons with “mental health conditions” referred to the service only 534 could not be placed into lasting jobs. Similar questions may also arise re the Sole Parent Employment Service, for which similarly poor data has been provided. Historic data on certain previous trial projects where attempts were made to place persons with mental health issues into jobs showed that 60 percent was considered “successful”. In view of that, it is not credible to believe that only 534 persons of 2,577 could not be employed.

Other information that has been provided shows a doubling of “obligation failure sanctions” within just one year since the new, major, draconian welfare changes were introduced and implemented from mid July 2013 onwards. Also has there been a marked increase in reported incidents of abuse, threats and assaults by clients towards WINZ workers at the front-line, since about 2010, when the National Party led government and Minister Paula Bennett introduced the so-called “Future Focus” policies. Then the drive was started to put extra expectations and pressures on sole parents to resume at least part time work, and also did WINZ start to increasingly re-assess sickness beneficiaries for their ability to work. The worrying incidents of client misconduct increased significantly in some regions until 2013. The new, radically changed welfare regime with new benefit types, with new social obligations, with drug testing and new criteria and expectations for work capability of sick, injured and disabled took effect in July 2013. While there appears to have been a moderate overall decrease in incidents of abuse, threats and assaults during 2014, this may only have been due to stringent new security measures that were put into force for the last quarter of that year, after the tragic Ashburton WINZ Office shootings. The increase in inappropriate abusive, threatening behaviour and assaults or wilful damage of some clients towards WINZ staff will not surprise informed insiders, and it has already been taken note of in various media reports. Once the trial of murder accused Russell John Tully commences in May this year, we may perhaps find out more about how MSD and WINZ work with some “difficult” clients who may also have serious mental health and other sickness issues. That sad incident shook up the nation, but as we know, very few people, certainly not the government or media, bothered asking any questions about what may have led to this killing of two WINZ workers. We would dare to argue, the present harsh and punitive social security system and its creators bear some responsibility.

 

The specified information that was sought, and the information provided by MSD

 

The specified information that had been asked for in the O.I.A. request from 01 October 2014 included the following – shown in normal type, and the Ministry of Social Development responded in their letter dated 26 February 2015 with the corresponding answers and information shown in italics:

 

O.I.A. request 1:

Detailed information about the names, the head-office and on site service provider addresses, and the particular services offered, for all the providers the Ministry of Social Development (MSD) has since mid to late 2013 entered contracts with, to:

● provide so-called “Mental Health Employment Services” (MHES),

● provide OTHER supported employment services for persons on health related benefits with other health conditions and/or disabilities,

● provide supported employment services for sole parents with children on the ‘Sole Parent Support’ benefit category.

 

Response by MSD to request 1:

The Contracted Case Management service is designed to return beneficiaries to employment by providing wraparound services that include employment-related case management, employment placement, and in-work support through an external provider.

There are two services:

 

1. Mental Health Employment Service for people:

● with a common mental health condition

● receiving Jobseeker Support

● with part-time or deferred work obligations.

 

2. Sole Parent Employment Service for people:

● who are sole parents

● receiving Jobseeker Support

● with full-time work obligations.

 

The following table shows the names and addresses of the Sole Parent Employment Service providers. The Mental Health Employment Service providers was previously provided to you on 24 April 2014.

 

Auckland:

In-Work NZ
10 Pioneer Street, Henderson, Auckland

Quality Education Services
10D Norman Spencer Drive, Auckland

Skills Update
59 Tidal Road Mangere, Auckland

 

Bay of Plenty:

APM Workcare
331 Rosedale Road, Albany

Alpha Consultants
78 Edgecumbe Road, Tauranga

Choice Consultancy
5 Rauhea Street, Brookfield, Tauranga

Kaja Enterprises (The Job Centre)
65 Onslow Street, Kawerau

 

Canterbury:

APM Workcare
331 Rosedale Road, Albany

Catapult Employment Services Trust
478 Barrington Street, Addington, Christchurch

Maximus Solutions
Unit 16, 35 Riccarton Road, Riccarton, Christchurch

Steph Mainprize Consulting
72 Oxford Street, Lyttelton

 

East Coast:

Career Change
54A Tom Parker Avenue, Marewa, Napier

First Choice Employment Services
257 Awapuni Street, Gisborne

 

Nelson:

APM Workcare
331 Rosedale Road, Albany

Business Management School
10 Church Street, Nelson

Community Colleges NZ
140 East Belt, Rangiora

Golden Bay Work Centre Trust
84 Commercial Street, Takaka

 

Taranaki:

FEATS Limited
64 Centennial Drive, New Plymouth

Training for You
144 Ingestre Street, Whanganui

 

Wellington:

In-Work NZ
10 Pioneer Street, Henderson, Auckland

Acts Institute
65 Dudley Street, Lower Hutt

APM Workcare
331 Rosedale Road, Albany

 
 

O.I.A. request 2:

Details about the fees payable by MSD, the agreed fee structure, the terms for payment of fees, the outcome expectations in the various providers, that were agreed to between MSD and the types of individual providers as listed under question 1. above. This is also in consideration of established “particular service intensity categorisation”, with consideration about other similar categorisations, and details about any such used categorisations would be appreciated.

 

Response by MSD to request 2:

The fee structure for the Mental Health Employment Service provider’s contract was provided to you on 24 April 2014. Below are the fees structure details for the Sole Parent Employment Service.

The Ministry pays the provider a one-off Enrolment and Activity Fee at the rate specified in table A for beneficiaries by Service Intensity rating enrolled in the Service. Note that “SI” is Service Intensity; “Very High SI – subsidy accessed” is when the provider will receive the above at six and twelve month milestones if still in continuous employment.

 

Table A – Enrolment and Activity Fee (GST Exclusive)

Medium SI Rating: $ 500

High SI Rating: $ 1,000

Very High SI Rating: $1,000

 

The Ministry pays providers an Employment Placement Fee where a person is commencing employment the rate specified in table B for people by Service Intensity and hours of employment.

 

Table B – Employment Placement Fee (GST Exclusive)

Hours of Employment – 20-29 hours per week:

Medium SI Rating: $1,125

High Rating: $1,875

Very High Rating: $3,375

Very High SI – subsidy accessed: $1,500

 

Hours of Employment – 30+ hours per week:

Medium SI Rating: $1,500

High Rating: $2,500

Very High Rating: $4,500

Very High SI – subsidy accessed: $2,000

 

The Ministry pays providers at the rate specified in table C for people by Service Intensity rating that have achieved 6 or 12 months continuous employment (defined as original or subsequent employer, no more than 10 working days out of employment and no interim return to benefit).

 

Table C – Continuous Employment Fee (GST Exclusive)

 

Hours of Employment – 20-29 hours per week:

Medium SI Rating: $563

High SI Rating: $750

Very High SI Rating: $1,500

Very High SI – subsidy accessed: $1,500

 

Hours of Employment – 30+ per week:

Medium SI Rating: $750

High SI Rating: $1,000

Very High SI Rating: $2.000

Very High SI – subsidy accessed: $2,000

 
 

O.I.A. request 3:

Relevant details about the provided “wrap-around services” that were already mentioned in media reports, such as an article in the “Herald on Sunday” on 30 June 2013 – titled “Govt will pay to shift mentally ill into work”, which are intended to support the clients that Work and Income (WINZ) refers to the various service providers as listed under question 1. above. I am in this question asking about “wrap-around services” that are provided by health-, disability- and/or addiction treatment and support service providers contracted by WINZ, or at least cooperated with through WINZ. What kinds of such extra clinical support services have been agreed on, who will pay for them, and what are the roles and expected qualifications of staff at those presumably external “wrap around service” providers that may offer health-, disability and/or addiction treatment and support services – in whatever types and forms? Detailed information in relation to the various types of providers and their services will be much appreciated, provided of course, such services are used.

 

Response by MSD to request 3:

The Mental Health Employment Service provides employment-related case management, placement and post placement support to assist participants to gain and maintain employment. Providers deliver these services using existing health and clinical support and where appropriate, support participants to access any additional support services that they may require.

The Ministry does not centrally hold information on the clinical support services being accessed through the service providers as these are particular to each beneficiary. The Official Information Act does not require me to generate new information on matters of interest to requesters in order to meet their request. Therefore I must refuse your request under section 18(g) of the Act.

The Ministry also does not hold the details of external providers staff, such as their roles and qualifications. As such, I am also refusing this part of your request under section 18(g) of the Act.

 

O.I.A. request 4:

Information in broken down detail, on how many beneficiaries suffering “moderate” mental health conditions, musculo-skeletal or other disabling health conditions, and also on how many sole parents on benefit receipt, have to this date been referred to such services as mentioned under question 1. above? Also how many were approached to consider being referred, how many agreed to be referred, how many refused to be referred, how many have been successfully placed into employment? How many have had to terminate their efforts working with providers of “Mental Health Employment Services”, or with any other type of supported employment services, and of them, for what reason did they do so? Records on this, preferably per month since commencement of the mentioned services, are requested, up to the most current month, otherwise per year. As some information on MHES was received some time ago, an update on the previous information is sought.

 

Response by MSD to request 4:

 

Mental Health Employment Service

Between September 2013 and October 2014, there have been:
• 2,577 people referred to a Mental Health Employment Service provider
• 7,293 people approached to participate
• 3,714 people agreed to participate
• 3,264 people who declined to participate.

 

As at the end of October 2014, 534 fully enrolled Mental Health Employment Service participants had exited due to the following reasons:

Reason ceased participation:

Client has left New Zealand:  2

Client moved elsewhere in New Zealand: 20

Client passed away:  1

End of six month service:  365

Unsafe to continue or client trespassed:  1

Change in circumstances, client no longer suitable for the service:  26

Circumstances making employment unlikely in the next six months: 24

Client is not contactable:  16

Client is not participating:  27

Client unable to achieve continuous or subsequent employment post placement: 13

Medical reasons:  40

 

Sole Parent Employment Service

Between September 2013 and October 2014, there have been:

• 2,542 people referred to a Sole Parent Employment Service provider
• 4,422 people approached to participate
• 4,327 people agreed to participate
• 95 people declined to participate

 

At the end of October 2014, 511 fully enrolled Sole Parent Employment Service participants had exited due to the following reasons:

 

Reason ceased participation:

12 months in-work support has ended: 1

Client has left New Zealand:  8

Client moved elsewhere in New Zealand: 13

Conflict of interest:  1

End of six month service:  271

Change in circumstances, client no longer suitable for the service:  72

Circumstances making employment unlikely in the next six months: 39

Client is not contactable:  19

Client is not participating:  43

Client unable to achieve continuous or subsequent employment post placement: 1

Medical reasons:  43

 
 

O.I.A. request 5:

Information on whether any referred Work and Income clients with mental health conditions, with musculo-skeletal or other disabling health conditions, suffered any significant medical problems (psychological, psychiatric or physical) upon having been referred to such service providers as mentioned above, and what types of problems were there, since such services started? Also in relation to this, if such cases occurred, what measures were taken by the provider and by WINZ, to offer support for the clients affected, and what records have been kept on this? Please provide relevant details for each month since these services were started, up to the most recent monthly update, provided such cases exist.

 

Response by MSD to request 5:

The Ministry does not record information pertaining to the wellbeing of a person following a referral to a service provider. As such this information is refused under section 18(e) of the Act as the information does not exist.

Please note that the Ministry only refers a person to a Mental Health Employment Service provider where the beneficiary has agreed to engage with a Mental Health Employment Service provider.

 

O.I.A. request 6:

Details about the names, head office- and service delivery site addresses, and the particular services being offered, by/of contracted providers to perform outsourced work ability and/or medical assessments on beneficiaries (or applicants for benefits) that commenced providing such new services from early 2014 until now. I refer to media reports in the ‘Otago Daily Times’ from 25 Oct. 2013, titled “Tests for disabled ‘flawed model’’’, and ‘Stuff.Co’, from 03 Nov. 2013, titled “Contractors to assess sick and disabled for work”, that mentioned some details on MSD entering contracts with such providers. As some information has already been provided on this by way of a letter dated 24 April 2014, I request and update on these services by Work Ability Assessment (WAA) providers, and the relevant information sought.

 

Response by MSD to request 6:

There have not been any changes to the Work Ability Assessment, and as such no further information to that supplied to you on 24 April 2014 is available.

 

O.I.A. request 7:

Information on what expectations Work and Income currently places on sick and disabled on health related benefits like ‘Jobseeker Support – deferred’, ‘Supported Living’, or applicants for such, in regards to meeting obligations to attend external examinations/assessments for medical conditions and work capability (done by Designated Doctors or WAA health professionals). Also what particular sanctions will be applied if a client objects to, or refuses to be examined or assessed by, a medical or health professional, which she/he will have been expected to see for this? Furthermore, in relation to this, what plans do presently exist to change or increase particular expectations and/or criteria for sick, injured and disabled persons on the mentioned health related benefits, to be referred to such work ability assessments? I appreciate your detailed response.

 

Response by MSD to request 7:

Information about work ability assessments was provided to you on 24 April 2014.

Work and Income does not refer Supported Living Payment beneficiaries for Work Ability Assessments. However, those in receipt of Supported Living Payment can have work preparation obligations if they have been assessed as having capacity to prepare for work.

Before Work and Income requires a person receiving Supported Living Payment to meet their work preparation obligations, they consider a person’s capacity to undertake the work preparation obligations.

Further information is available at:
http://www.workandincome.govt.nz/individuals/obligations/obligations-for-getting-supported-living-payment.html#Workabilityassessment7

 

O.I.A. request 8:

Information on what specific performance targets (e.g. in measured output criteria and numbers, like in successful referral numbers for clients, in cost savings achieved for MSD and/or WINZ, or in any other tangible, countable measure) do Work and Income case managers, branch office managers, Regional Health Advisors, Regional Disability Advisors, or for that sake staff collectively operating as individual WINZ branch office teams, have to meet, or are they encouraged to achieve? This question is in regards to clients being referred to, or placed into employment or training, like –
● ordinary unemployed beneficiaries on the ‘Job Seeker Support’ category,
● beneficiaries on ‘Job Seeker Support’ with a health issue and/or disability (i.e. on ‘Jobseeker Support – deferred’),
● beneficiaries in receipt of the ‘Supported Living Payment’ benefit,
● beneficiaries on Sole Parent Support.

Also in relation to this, are there any performance bonuses or other forms of financial or similar “rewards” or “benefits” paid to the mentioned staff of MSD at WINZ, even if these are not directly related to specific targets achieved, but in consideration of general achievements by the various staff or branch offices? Details about types of any annual or other bonuses, special awards, benefits and similar will be appreciated.

 

Response by MSD to request 8:

The Ministry does not pay bonuses to staff. The Ministry does not provide staff with additional leave in recognition of performance. Leave entitlements are determined by a staff member’s agreement and their length of service.

In 2011, some service delivery staff received a productivity dividend for meeting agreed group measures which included increasing efficiency and reducing work duplication. This payment was a contractual commitment which was agreed as part of the 2010-13 Terms of Settlement with the Public Servant Association. The payment focused on staff at Work and Income and Students, Seniors and Integrity Services. The last payment was made in December 2012.

 

The table below provides a breakdown of the number of people in receipt of a performance payment or a productivity dividend and the total paid between 2009/2010 and 2012/2013. In 2013/2014 one ‘at risk’ performance payment was made to a Ministry senior manager. The individual payment is withheld under 9(2)(a) of the Act to protect the privacy of the person.

 

Year 2012/2013:

Bonuses: 0

Performance Payments: $15,056 to 2 staff

Productivity Dividend: 3,237,270 to 4,004 staff

 

Year 2011/2012:

Bonuses: 0

Performance Payments: $13,400 to 2 staff

Productivity Dividend: 3,066,137 to 4,077 staff

 

Year 2010/2011:

Bonuses: 0

Performance Payments: $31,416 to 4 staff

Productivity Dividend: 0

 

Year 2009/2010:

Bonuses: 0

Performance Payments: $72,999 to 9 staff

Productivity Dividend: 0

 

There are no performance measures for staff to refer beneficiaries to contracted services. I am therefore unable to provide any information under section 18(e) of the Official Information Act 1982, as it does not exist.

Work and Income monitors its business indicators and the number of people on a benefit at a national, regional and service centre level. The measures and official statistics can be found in the Ministry’s accountability documents, which are publicly available on the Ministry’s and the Parliament website at http://www.msd.govt.nz and http://www.parliament.nz.

 
 

O.I.A. request 9:

Information on how many persons on health related benefits, such as ‘Jobseeker Support deferred’ or ‘Supported Living Payment’, have had their benefits reduced or stopped altogether, as a result of refusing to meet obligations, such as mentioned in question 7 above. Please provide figures per month, or otherwise per year, and per category, since those new benefit categories were introduced in mid July 2013.

 

Response by MSD to request 9:

Please find enclosed below a table that shows the number of obligation failure sanctions applied to working-age (18 to 64 years) Jobseeker Support – Health Condition and Disability and Supported Living Payment recipients from September 2013 to the end of December 2014. Note that this information is a count of sanctions, not beneficiaries as a person may have had more than one sanction imposed during the period.

 

Benefit Type: Supported Living Payment:

 

Quarter / number of sanctions:

September 2013: 4

December 2013: 5

March 2014: 9

June 2014: 13

September 2014: 8

December 2014: 10

 

Benefit Type: Jobseeker Support – Health Condition and Disability:

Quarter / number of sanctions:

September 2013: 509

December 2013: 715

March 2014: 681

June 2014: 1,036

September 2014: 1,031

December 2014: 965

 

O.I.A. request 10:

Details on how many persons on a health and disability related benefit, like formerly the ‘Sickness Benefit’, the ‘Invalid’s Benefit’, now the ‘Supported Living – deferred’ and ‘Supported Living Payment’ benefits, have to the knowledge of the Ministry of Social Development and/or Work and Income had their benefit receipt stopped or terminated, as a result of fatal self harm, of suicide or unexpected early death? A break-down of data on this in relation to each benefit category and causes of death will be appreciated, for each month and year (if available) since 01 January 2005 until now. That is of course, provided this information has been recorded.

 

Response by MSD to request 10:

While the Ministry is able to identify the number of benefits that have been stopped following the death of the beneficiary, the reason for death (where provided to Work and Income) is manually recorded on the beneficiary’s record.

Therefore I am unable to provide you with this information under section 18(f) of the Official Information Act. This section allows me to refuse a request where substantial collation and research is required to find the information that is requested. In this instance, to determine the cause of death, the Ministry would need to manually access and collate thousands of individual files. I do not consider this to be in the public interest as this would remove staff from their core duties and impact on the effective functioning of the Ministry.

 

O.I.A. request 11:

Information on what advice or expectations MSD has communicated to medical practitioners – like general practitioners (GPs) and also medical specialists (orthopaedic surgeons, psychiatrists, psychologists, and so forth), for them to consider when asking questions to, and when assessing health conditions and work ability of their patients who require a ‘Work Capacity Medical Certificate’ for benefit purposes? Have particular sets of questions been sent or presented to GPs, as a format to work with, have particular criteria been communicated, beyond of what is contained in the medical certificate forms, or the ‘Guide for Designated Doctors’. In regards to the latter, where can a current copy of that “guide” be found, as nothing could be found online on the Work and Income website.

 

Response by MSD to request 11:

Medical practitioners provide an assessment of the impact of the individual’s disability or health condition on their ability to undertake suitable employment. The assessment also provides information that may enable an individual to work towards returning to paid employment.

All guidance for medical practitioners on about the Medical Certificate is now provided online at: http://www.workandincome.govt.nz.

 

O.I.A. request 12:

Details about how many incidents where recorded by staff of Work and Income, where case managers or other staff felt threatened, intimidated, and also were they were even assaulted by distressed or angry clients, during the execution of their duties? If possible a break-down of incidents and types of issues per month, otherwise per year, would be appreciated, for the time from 01 January 2005 until now. If available, also please provide information on what types of benefits the clients were, when such incidents occurred and were recorded.

 

Response by MSD to request 12:

The State Sector Act 1988 and the Health and Safety in Employment Act 1992 outline the Ministry’s obligation to be a ‘good employer’, including the Ministry’s obligation to provide a safe working environment for its employees.

The Ministry places a high priority on the safety of its staff and the New Zealanders it serves. Our security policy is an essential component of the Ministry’s strategy to reduce risks, not only to staff, but also to our beneficiaries. Abusive or threatening behaviour towards Ministry staff is treated very seriously. Staff report all incidents to the security guard in their office and enter the incident in the Ministry’s incident reporting database. When appropriate, the incident is referred to the Police for investigation. The Ministry also provides follow-up advice and support for any staff involved in such incidents, including support through the Employee Assistance Program.

People who intimidate staff or other people on site by demonstrating aggressive and threatening behaviour will either be warned verbally or in writing. However, where warnings have been previously issued or in serious cases, such as assault or wilful damage to property, they will be served a trespass notice.

 

The following table provides the number of incidents across all Ministry of Social Development sites (excluding Child, Youth and Family residences) over the last four calendar years. The Ministry does not hold this information in such a way that can be recorded on between 2005 and 2010, per your request. Therefore, this part of your request is refused under section 18(f) of the Act as to provide you with this information would require a substantial amount of manual collation.

I have considered whether the Ministry would be able to respond to your request given extra time, or the ability to charge for the information requested. I have concluded that, in either case, the Ministry’s ability to undertake its work would still be prejudiced.

The data is based on incidents that cover the categories of abusive behaviour, arson, assault, breach of trespass order, criminal damage and unauthorised access. It does not include instances of burglary, theft, loss, graffiti, or loss of Ministry information. The incident categories are as per the Ministry’s ratings of incident severity.

Note:

PLEASE REFER TO THE FIGURES CONTAINED IN THE ATTACHED PDF FILE WITH THE AUTHENTIC ORIGINAL RESPONSE BY MSD, SHOWN IN A TABLE FOR CALENDAR YEARS 2011 TO 2014, PER REGION AND PER TYPE OF INCIDENT! THE TEXT FORMAT FOR THIS BLOG POST DOES NOT ALLOW FOR THE TABLE TO BE COPIED OR REPRESENTED IN A SUITABLE MANNER!

 

O.I.A. request 13:

Information on how many clients of Work and Income were trespassed from WINZ office(s) for inappropriate conduct of the types like mentioned under question 12 above. Also please provide information on how many clients were referred to the New Zealand Police and charged for relevant offences in relation to this. This information is also requested for the time from 01 January 2005 until today.

 

Response by MSD to request 13:

Before issuing a trespass notice Work and Income Service Centre Managers will first consider:
• the seriousness of the incident or offence committed
• whether it is the first incident or offence
• whether it is likely to happen again
• the person’s attitude after the incident and whether they are likely to heed a warning letter and change their behaviour.

If a manager believes the behaviour is likely to be repeated in the future, and that it will not be prevented by issuing a verbal or written warning, that person will be issued with a trespass notice. Please note that in cases of assault or wilful damage, a trespass notice is always served.

The physical addresses of all Ministry sites and service centres that are to be covered by the trespass notice will be specified on the notice. Trespass notices are issued by region, to prevent people from displaying similar behaviour in neighbouring sites. Trespass notices are valid for two years from the date they are issued.

Work and Income is committed to ensuring people subject to trespass notices continue to receive their correct entitlement to assistance. Once a trespass notice has been served, beneficiaries will be notified in writing and informed that they are no longer able to deal face to face with Work and Income. These people are advised that in order to prevent a breach of the trespass notice, they should appoint an agent to act on their behalf when dealing with the Ministry.

Where no agent is willing to act on the person’s behalf, or the person is not willing to have an agent, contact may be by telephone or email. Work and Income will work with them to put in place alternative arrangements.

People who have been trespassed and pose a high risk to the safety of Ministry staff may be referred to the Remote Client Unit. This unit provides specialist case management via phone, fax, email or mail. Where the person has no access to a telephone, contact may be made by letter instead.

 

The table below shows the total number of trespass orders in place for Work and Income sites, broken down by region, as at 30 June 2008, 2009, 2010, 2011, 2012, 2013 and 2014.

The Ministry does not hold this information in such a way that can be reported on between the years 2005 and 2008, per your request. Therefore, this part of your request is refused under section 18(f) of the Act as to provide you with this information would require a substantial amount of manual collation.

I have considered whether the Ministry would be able to respond to your request, given extra time, or the ability to charge for the information requested. I have concluded that, in either case, the Ministry’s ability to undertake its work would still be prejudiced.

Note:

PLEASE REFER TO THE FIGURES CONTAINED IN THE ATTACHED PDF FILE WITH THE AUTHENTIC ORIGINAL RESPONSE BY MSD, SHOWN IN A TABLE FOR CALENDAR YEARS 2008 TO 2014, PER REGION THE TRESPASS ORDERS IN PLACE! THE TEXT FORMAT FOR THIS BLOG POST DOES NOT ALLOW FOR THE TABLE TO BE COPIED OR REPRESENTED IN A SUITABLE MANNER!

 

The table below shows the total number of trespass orders issued for Work and Income sites, broken down by region, as at 30 June 2013 and 30 June 2014.

 

2013:

Region, number of trespass orders:

 

Auckland – 32

Bay of Plenty – 15

Canterbury – 18

Central – 12

East Coast – 19

Nelson – 11

Northland – 16

Southern – 12

Taranaki – 16

Waikato – 9

Wellington -16

Total: 176

 

2014:

Region, number of trespass orders:

Auckland – 22

Bay of Plenty – 24

Canterbury – 10

Central – 11

East Coast – 20

Nelson – 7

Northland – 13

Southern – 13

Taranaki – 15

Waikato – 12

Wellington -16

Total: 163

 

O.I.A. request 14:

Please also provide a current copy of the so-called resource manual ‘Medical Appeals Board – a resource for Board Members’. If that manual is no longer in use, a copy of the official replacement document in use will be appreciated.

 

Response by MSD to request 14:

Please find enclosed a copy of the document titled: Medical Appeals Board, Board Members Information Pack, dated July 2013.

 

I hope you find this information on a range of information about beneficiaries with health and/or disability issues 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)

Debbie Power
Deputy Chief Executive Work and Income

‘END’

 
 

Please see the attached PDF files with authentic scan copies of the above O.I.A. response from 26 February 2015, and the earlier one from 24 April 2014:

1. MSD, OIA rqst, MHES, WAA, other support services, reply, anon, hilit, 26.02.15.pdf:
MSD, OIA rqst, MHES, WAA, other support services, reply, anon, hilit, 26.02.15
2. MSD, OIA rqst, MHES, WAA, other support services, issues, reply, anon, 26.02.2015.pdf (unmarked copy):
MSD, OIA rqst, MHES, WAA, other support services, issues, reply, anon, 26.02.2015
3. MSD, OIA reply, CE, Ment. Health Emplmt Serv., Work Ability Assmts, compl. hilit, 24.04.14.pdf:
MSD, OIA reply, CE, Ment. Health Emplmt Serv., Work Ability Assmts, compl. hilit, 24.04.14
4. MSD, O.I.A. reply, D. Power, MHES, WAA, information, complete, 24.04.2014.pdf (unmarked copy):
MSD, O.I.A. reply, D. Power, MHES, WAA, information, complete, 24.04.2014.

For information received in response to request point 14 in the O.I.A. request from 01 Oct. 2014, see the post under these links:
https://nzsocialjusticeblog2013.wordpress.com/2015/03/17/the-medical-appeal-board-how-msd-and-winz-have-secretely-changed-the-process-disadvantaging-beneficiaries/

Link to PDF document offered for downloading:
MAB Process, How MSD discretely changed it, further disadvantaging clients, NZSJB, 18.03.15

 
 

C) Information that has not been provided by MSD

From the above it becomes clear that MSD have only provided some of the asked for information and failed to provide other information that had clearly also been asked for. While there has been some information withheld under sections 18(e), 18(f) and 18(g), other information has simply not been made available, while NO explanation has been given for this. Some information may have been withheld for justified reasons, but other data should have been made available. I dare to claim that this selective answering to an O.I.A. request is not an oversight or a co-incidence!

The following issues have arisen regarding the information, that could and should have been reasonably expected, but that has not been provided, or has not been provided in a satisfactory manner:

 

Re request 1:
While detailed information about the providers of the ‘Sole Parent Employment Service’ (SPES) was given re their contract relevant head office addresses, NO information was presented about the on site (physical) service delivery addresses of both the ‘Mental Health Employment Service’ (MHES) and ‘Sole Parent Employment Service’ (SPES) providers. For instance APM Workcare will not be delivering all their services from their Albany head offices, and instead have various service locations for regions they cover. The same applies to some other providers. This may actually be an oversight due to the request not having been read properly, but one would have expected that MSD’s O.I.A. response staff members are capable of properly reading and understanding requests.

Re request 2:
MSD have delivered the much appreciated information on the fee structure for the ‘Sole Parent Employment Service’ (26 Feb. 2015), as was previously also done for the ‘Mental Health Employment Services’ (24 April 2014). But NO information was presented on “outcome expectations”, like for instance in the form of expected or anticipated percentages (or in other measurable forms that had been agreed on) for referred clients to such services, that would show how many of them are actually successfully placed into employment. We would expect that MSD would have expressed certain clear expectations to the providers, as part of agreements they made. Such expected “outcome” or “target” information should be made available, and if it does not exist, a short answer would have solved this. But that part of the request has simply not been addressed at all.

Re request 3:
MSD does as the Ministry (responsible for Work and Income) at least now clarify, that it does not itself offer access to – or provide – “wrap around services” by professional health-, disability- and/or addiction treatment and support service providers within the framework for the ‘Mental Health Employment Services’. It seems that MSD leaves it up to contracted providers to support participants to access any “additional services that they may require”.

But as Work and Income does generally have expectations that sick and disabled seek available treatment for treatable health conditions that may otherwise hinder them from finding and accessing employment, we are astonished that there seems to be no arrangement between the contracted MHES providers and MSD to gather information on who needs extra support.

The concept of ‘Mental Health Employment Services’ would appear to mean that this is employment focused support involving also the provision of “wrap around” mental health services. Hence we would expect that contracts between MSD or Work and Income and the providers would include the payment for services that the provider needs to supply to clients referred to them. This would appear to include certain additional “mental health support” services. As we had expected that agreements between MSD and the mentioned providers would cover this aspect as part of their “wrap around services”, we must ask why this information is also being withheld, or whether it does not exist at all, or whether it is also not “centrally held”.

One would have reason to believe that contractual agreements between MSD and the MHES and SPES do stipulate what minimum qualifications staff members employed by such service providers must have to deliver the “wrap around services” to participants. Hence we would at least have expected a mention of these particular qualifications and types of positions, not in relation to named individuals, just as information relating to the particular providers.

If these supposed “wrap around services” in a more clinical form of health support are indeed simply provided as part of the ordinary, accessible public health care services presently available through District Health Boards, MSD should provide a clear statement to that effect. This would then clarify that no extra spending is put into additional health services for WINZ clients. The health sector has been struggling in many areas for years, and one area that has not received sufficient funding is mental health treatment services for ordinary adults who are not prison inmates. We must bear in mind that many services only come with payable high fees, so the question will also be, would WINZ help covering these additional costs under the Disability Allowance? The reply leaves too many questions.

Re request 4:
MSD have provided numbers in a table on 534 “fully enrolled Mental Health Employment Service participants” that had “exited” the service as at the end of October 2014 for a number of reasons. But the information appears unclear and confusing. In the request point 4 it asks for broken down details on how many participants had to terminate their efforts working with providers of MHES, or with any other type of supported employment service, for whatever reasons – for specified periods. With that one would have expected information preferably per month since commencement of the services, and up to the most current month – or otherwise per year.

The numbers for people referred, approached, for those who agreed to participate, and those who declined are clear, but the request appears to not have been answered satisfactorily and appropriately when it comes to what the remaining figures in the provided table actually mean. There is a need for clarification whether the table on page 4 of the letter from 26 February lists ALL the “exits” of participants for the stated reasons that occurred for the whole period from the start of service delivery, up to the end of October 2014, or whether the figures are just for that one month of October 2014.

And NO information has been provided on those participants of either service, who have been successfully referred into employment. The table provided gives NO information on job placements, and whether they lasted for any significant, longer period.

In a response to an earlier O.I.A. request MSD stated on 24 April 2014 that at 27 January 2014 already 328 participants of the MHES had ended their participation with a provider, with no reason given as to why and how, and that only 65 clients had until then achieved an employment outcome. Given those earlier figures, the newly provided figures (from 26 February 2015) appear to not represent those for the whole period since the MHES started in September 2013, until October 2014, who exited the service for the stated reasons.

The same applies to the figures listed in the table on page 5, being for SPES participants. Are those figures perhaps also only for the month of October 2014, or are they for the whole period for which the services were being delivered? And how many of all the referred participants were actually successfully placed into employment for any significant, lasting period? We would also have expected an explanation as to what “end of six month service” means.

Again, only some of the O.I.A. request was answered, and the rest was not met, without giving any reason or explanation. This can hardly be seen as an “oversight” of the request made.

Re request 5:
In their response dated 26 February 2015 MSD stated: “The Ministry does not record information pertaining to the wellbeing of a person following a referral to a service provider. As such this information is refused under section 18(e).”

In MSD’s response from 24 April 2014 (to a request point 6 from 16 Jan. 2014) MSD stated: “To date there have been no recorded incidents where a client has suffered significant medical or psychological problems having been referred to MHES. If this situation arises, the service provider will inform Work and Income, who will take the appropriate steps to support the client.”

We cannot help but notice a “slight” contradiction between the two answers about virtually the same problem(s). In light of that we must ask, why could a clear enough answer be provided to the very similar request for information (request 6 from 16 Jan. 2014) in MSD’s letter dated 24 April 2014, and why is such information now suddenly no longer available?

Given such a contradiction in responses, a proper explanation and clarifications re this seems overdue. If a proper, clear response could be given on 24 April 2014, one would have expected a clear one also in the new response dated 26 February 2015.

Re request 6:
Again MSD refer to a former response they gave on 24 April 2014, where they provided contract related head office addresses for the MHES and the so-called ‘Work Ability Assessment’ (WAA) providers, but not the on-site service delivery addresses for these. Hence that part of the request has not been met. It should be expected that not only the main office addresses of the contracted providers, but also the addresses for the locations where they deliver their services are provided. The mere mention that the information was provided on 24 April 2014 is only partly correct.

Re request 7:
The request clearly asked for clear expectations WINZ currently places on sick and disabled on health related benefits, or applicants for such, in regards to meeting obligations to attend external examinations/assessments for medical conditions and work capability. The information and explanations given by MSD in a response from 24 April 2014 (page 5), in reply to an earlier request point 10 from 16 Jan. 2014, does not clearly enough state any forms of sanctions that may be imposed. When does a benefit rate get cut in half, or stopped altogether, if a person refuses or fails to cooperate, without “good and sufficient reason”, thus resulting in an “obligations failure”? A response with information clarifying that for instance would have been expected. But none was given.

Also has the request for information on any plans that may presently exist to change or increase particular expectations and/or criteria for sick, injured and disabled persons on mentioned health related benefits, to be referred to such work ability assessments, not been answered. If no such plans and no information about such plans exist, a brief comment in that regard would have sufficed. We are again left in the dark about what future plans in that area may already exist.

Re request 8:
The request for the specified official information has in this case also not been fully met. Not only was MSD asked for information on “bonuses” to staff, “additional leave in recognition of service”, or similar “performance measures”, but firstly for specific performance targets (e.g. successful referrals of clients into work, training and so forth), which may not be linked to any such “rewards”. Performance targets may be set for branches without bonuses and the likes being paid, simply as part of ordinary operational performance expectations, for all staff working with clients. There must be certain goals and targets that MSD sets itself and their staff, to achieve annually.

In a 22 minute long interview on Radio New Zealand National’s ‘Nine to Noon’ program on 15 April 2014 Director for Welfare Reform Sandra Kirikiri clearly stated to Kathryn Ryan, that MSD and WINZ case managers definitely have “targets” to meet, when working with clients, including such as those referred to MHES. See the following information re this:

Topic: “WINZ expands scheme to support unemployed with illness issues”
http://www.radionz.co.nz/national/programmes/ninetonoon/audio/2592666/winz-expands-scheme-to-support-unemployed-with-illness-issues

(Listen from 11 minutes and 45 seconds on, particularly between 12 minutes and the 10 to 15 following seconds! Miss Kirikiri most clearly answers, “they definitely have targets”!)

Given the comments by Sandra Kirikiri, we are led to believe that some “targets” exist, for achieving outcomes for clients, in some forms and numbers. That is the information that was asked for, and which has not been provided with the written O.I.A. response.

On page 7 in the response dated 26 February we read: “There are no performance measures for staff to refer beneficiaries to contracted services. I am therefore unable to provide any information under section 18 (e) of theOfficial Information Act 1982, as it does not exist.” But then it also states: “Work and Income monitors its business indicators and the number of people on a benefit at a national, regional and service centre level.”

In light of that information just mentioned, either Miss Kirikiri must be wrong, or the response in the letter from 26 Feb. 2015 must be wrong. What is the purpose of “monitoring” data, when this is also not used to work out achievable “targets”? This contradicting information does not give us much reason to trust what comes from MSD.

Re request 11:
The extremely limited information that has been provided and what is available on the Work and Income website does not sufficiently answer the request. The information on the website does only cover rather general and mostly widely available information that MSD communicates to medical practitioners, specialists and other health professionals, who conduct assessments on health conditions and on work ability of clients.

Through earlier Official Information Act requests to MSD we have already been informed that Regional Health Advisors, Regional Disability Advisors, also the Health and Disability Coordinators, and the Principal Health Advisor, do all regularly communicate and correspond with various medical practitioners and other health professionals working with MSD and Work and Income. This happens particularly with designated doctors. We are informed and aware that there are other forms of direct Advisor to practitioner “advice” and “expectations” being communicated to such health professionals. These forms of communicated advice, guidelines and expectations are NOT covered by the mostly more general information on the website.

Also did the requester ask: “Have particular sets of questions been sent or presented to GPs, as a format to work with, have particular criteria been communicated, beyond of what is contained in the medical certificate forms, or the ‘Guide for Designated Doctors.”

Hence the request has in that regard not been met and answered. We would expect that more information should be provided, which would not be case specific, but which is applied more widely. This kind of information is definitely not available on the website, and it would go beyond the information on the ‘Work Capacity Medical Certificate’, and in some cases also beyond of what was once available through a “Guide for Designated Doctors”. If there are reasons to withhold such further information, we should expect that MSD would state and explain this. But the information and answers given seem to ignore the actual request.

Also did the requester ask for a source to find the once used ‘Guide for Designated Doctors’, which has also not been provided, certainly not on the Work and Income website. All that is offered are links to download an application form (in PDF) for “designated doctors” and to access “READ Codes” to use by doctors. See the following link:
http://www.workandincome.govt.nz/community/health-and-disability-practitioners/designated-doctors.html#Resourcesfordesignateddoctors8

Hence that part of the request appears to also not have been answered. If there is no longer such a Guide, or if it is withheld for particular reasons, it must be expected that this is clarified. The same should be expected if that former “Guide” has been replaced by another document.

 

Besides of the limited information that has been provided and the above that has not been provided, we can note that sufficient data was provided to requests 9, 10, 12, 13 and also 14.

 
 

D) Interpretation of – and conclusions from – the obtained information

When looking at the greater picture, and assessing the O.I.A. responses from 26 February 2015 and the one from 24 April 2014, we have reason to presume, that MSD is reluctant to present the whole information that was requested, as this may reveal that the trials for MHES and SPES are not delivering the outcomes that MSD and WINZ had anticipated or hoped for.

The newly provided information appears to show, that the MHES is not delivering the results that were expected when this “service” was introduced around September 2013. The earlier OIA response from 24 April 2014 (question/answer 5, page 3) mentioned that 328 participants had by 27 Jan. 2014 ended their participation with a provider, while only 65 had been placed into jobs. The newly provided figures (from 26 February 2015) for those “exiting” the MHES seem to apply only for October 2014. It is hard to believe that since 27 January 2014 up to the end of October 2014 only 206 further participants in the MHES could not be referred into jobs for the stated reasons. If the MHES had been such a success, we would have heard the Minister and MSD boast with this!!!

At the end of October 2014 out of 534 fully enrolled participants 365 “exited” the service due to “end of 6 months service”, 40 did so due to “medical reasons” and yet more did so for a number of other reasons. NO figures are provided for successful employment placements. It is hard to believe that out of the total of 2,577 persons with “mental health conditions” referred to the service only 534 could not be placed into lasting jobs. Also has MSD failed to provide figures for how many participants in the Sole Parent Employment Service were actually placed into jobs, and whether they remained in employment for any significant periods of time.

We are informed that the requester is trying to chase up the above mentioned and other missing information from the latest OIA response from MSD, particularly
a) re physical on site addresses for the various providers asked for in request 1,
b) re actual, particular “outcome expectations” (ratios) MSD have in providers (not just fees paid), asked for under request 2,
c) re the roles and qualifications MSD expects staff of external providers to provide and have, asked with request 3,
d) re the actual numbers of participants referred to the MHES and the SPES that were placed in lasting jobs, see request 4,
e) re the correct “exit” figures for participants (per month or the year) asked with request 4,
f) re the specific performance TARGETS (in numbers and criteria), not represented by “performance bonuses” or the likes, asked with request 8,
g) re the OTHER advice and expectations that WINZ place on GPs now, and which come from the Regional Health Advisors, Regional Disability Advisors, and also Principal Health Advisor Dr Bratt, who often communicate directly with medical practitioners, and which is NOT published on the MSD and WINZ websites, see request 11,
h) re a few other bits of so far not disclosed or withheld information.

 

As for the rest of the replies in the OIA response dated 26 Feb. 2015 the following stands out, and is of great concern:

 

1. MSD state on page 3, in reply to request 3, that they do NOT provide additional “health and clinical support” services and instead rely on clients using such health services they already access elsewhere; hence the service can hardly be called a “supported” “mental health employment service”;

2. MSD state also on page 3, in reply to request 3 that the MHES service providers “support” participants to “access any additional support services that they may require”, where appropriate; this though raises the question how well qualified, experienced, equipped and connected the providers are to do so, and how they may be able to do this, as they need full consent of the “client” they work with;

3. MSD state on page 5 to request 5 that “the Ministry does not record information pertaining to the wellbeing of a person following a referral to a service provider.” This should be of great concern, as that means MSD simply leaves clients’ well-being and fate fully in the hands of the outsourced service providers, who are not accountable under the OIA; one should expect that MSD would bother to “care” and expect to be informed and keep some relevant records on persons with health conditions referred to other services;

4. The figures provided in response to question or request point 9 show a massive increase in “obligation failure sanctions”, particularly since late 2013, which was when the first newly introduced rules, additional expectations and obligations brought in under the ‘Social Security (Benefit Categories and Work Focus) Amendment Act’ started to kick in! While sanctions of Supported Living Payment recipients have remained few, they have almost “exploded” for the new Jobseeker Support benefit category recipients with health conditions and disability. From September 2013 to September 2014 these sanctions have doubled! This is further evidence that the new regime being enforced is draconian;

5. MSD state on page 8 to question/request 10 that “while the Ministry is able to identify the number of benefits that have been stopped following the death of the beneficiary, the reason for death is manually recorded on the beneficiary’s record”. Therefore the Ministry is “unable” to provide the information under the OIA under section 18 (f), they claim. This does indeed sound very irresponsible, and can be perceived as a neglect of the duty of care and accountability, as cases of self harm and suicide leading to death should be a huge concern to MSD and WINZ and SHOULD be reported and recorded centrally;

6. MSD simply refer to information on their website for medical practitioner information for completing Work Capacity Medical Certificates in reply to question 11, but the answer put to them, about clear sets of questions that MSD may provide them to ask clients and patients is not being responded to (see: http://www.workandincome.govt.nz/community/health-and-disability-practitioners/work-capacity-med-cert-health-practitioners.html) ; other information obtained earlier has revealed the close cooperation between MSD’s Dr David Bratt and his “Advisors” and general practitioners, and it must be presumed that proper sets of questions and other advice have been made available to GPs to use when interviewing patients(!); also is the reference to a controversial statement by the AFOEM on the “health benefits of work” not appropriate, as these do not necessarily apply generally and can be disputed;

Note: The link under ‘6.’ above no longer works, so try these ones, please:
http://www.workandincome.govt.nz/providers/health-and-disability-practitioners/guides/
http://www.workandincome.govt.nz/providers/health-and-disability-practitioners/guides/work-capacity-med-cert-health-practitioners.html
(updated 19 Sept. 2016)

7. The clear increase of reported and recorded abusive behaviour, like threats, intimidation, assaults and the likes that MSD and WINZ staff suffered over recent years deserve attention, as there appears to have been significant increases of such until 2013. Likely due to the shooting incident at Ashburton, and threats and abuse at some other branches, having been followed by a resolute security crackdown, do the figures for 2014 appear to have reduced a little. It is evident that the increasingly draconian “reforms” that were introduced since 2010 have pushed more people towards showing inappropriate, but perhaps understandable reactions (see table in response to question 12, page 9 to 11);

8. Trespass orders appear to have been more fluctuating and showing less of a clear trend, but in some regions there seem to have been increases (tables on pages 12 to 13, in reply to request 13).

 

E) Final conclusions

It appears that MSD and WINZ are somewhat more prepared to and comfortable with the release of information that shows how WINZ staff members suffer from inappropriate, abusive, threatening behaviour and even physical assault, rather than with releasing information that shows how their “trials” for the MHES and SPES are going.

There is much talk about the ambitious goals and efforts being made to “support” also sick, injured and disabled into work, but data we get on clients participating in the mentioned services, and leaving them again, is sketchy and ambiguous. It seems extremely “bizarre” for MSD to provide some poorly specified sets of figures for some participants “exiting” these newly contracted services offered by outside providers, yet offer NO figures at all on actual job referrals and placements, and whether they last longer or not.

In view of that, it seems that the MHES and SPES trials are not delivering, because if they would, we would certainly hear about it. We did some online research for “Mental Health Employment Services” offered by WINZ, and very little information can be found. Hence the ball is in the court of MSD now, to present us the true figures on this, same as the other information that has NOT been provided.

Work and Income and MSD have for a few years now shown less transparency and only made limited amounts of official information available, and this makes it near impossible to properly evaluate the success or failure of new policies that were brought in since 2008, especially since 2010. As was already mentioned in another post, MSD also stopped publishing data on Medical Appeals Board hearings and expenditure with their Annual Reports in 2011 or 2012. The requester has confided to us, that a range of complaints re MSD and their O.I.A. responses has been filed with the Ombudsman.

 
 

Quest for Justice

 

Auckland, updated 14 April 2015

 
 

FOR EASIER READING DOWNLOAD A PDF WITH THE TEXT OF THIS PUBLICATION:
mhes-spes-msd-withholds-o-i-a-info-that-may-prove-trials-a-failure-post-nzsjb-upd-fr-14-04-15

(Please bear in mind that links may only be “active” on this blog-post, and not in the PDF!)

 
 

ADDENDUM 1: THE GOVERNMENT CONTINUES TO WITHHOLD EVALUATION INFORMATION ON MHES AND SPES (05 OCT. 2015):

 

On 17 September 2015, in the NZ House of Representatives (Parliament), the Labour opposition spokeswoman on Social Development, Carmel Sepuloni, put a hard question to the Associate Minister for Social Development, asking about the government’s position on the apparently poor outcomes of so-called “trials” in the form of Mental Health Employment Services (MHES) and Sole Parent Employment Services (SPES). She appeared to have already received a response to an Official Information Act (OIA) request from the Ministry, putting into question the effectiveness and success of the new contracted out services.

The Associate Minister Jo Goodhew appeared a bit tense and annoyed, and was reluctant to provide any proper response or any useful data. Pressed for an answer, she then simply said to Carmel Sepuloni, that she would have to wait until late in the year for an “evaluation report”. That report though was supposed to have been presented already, according to earlier indications.

So we continue to be left in the dark, about how many persons that took part in these supposed “wrap around service” delivering programs were actually successfully placed into any suitable, lasting and paid employment.

What should also be of great concern, was that the Associate Minister was actually guilty of misleading the House of Representatives Parliament) when giving her answers. First though, see this video:

http://www.inthehouse.co.nz/video/39670

You hear and see how Carmel Sepuloni asked about details about the Sole Parent Employment Service and also Mental Health Employment Service, run on a trial basis for over a year now, and where NO real data has been made available about their supposed “success”. She asked for a response to the conflicting, worrying details she appears to have received by way of an OIA request.

As for parts of the answer by Jo Goodhew, Associate Minister, she was misleading the House!

First see her details here, on the glossy Parliament website:
https://www.beehive.govt.nz/minister/jo-goodhew

She claims there is no obligation for mental health suffering or sole parents to take part in the employment referral programs that MSD now use through outsourced, contracted service providers. The truth is that “officially” there is no obligation for mental health sufferers on health related benefits to join the MHES, but there is most certainly an obligation for sole parents to participate, as the following shows:
http://www.workandincome.govt.nz/documents/forms/sole-parent-support-obligations-and-privacy-form.pdf

Yes, there is most clearly an OBLIGATION to take part in such measures, that assist a person that receives the Sole Parent Benefit to get employment. See 2. for part time work obligations:
“take part in any other activities that Work and Income refer me to, such as attend any job training courses, seminars, work experience or work assessments (including rehabilitation, but not medical treatment) that will improve my work readiness or help me get work”

So in denying that there is an obligation, implying that it is supposed to be all voluntary is simply untrue, and hence Jo Goodhew misled the members of Parliament, which should be a serious matter. So far nobody appears to have bothered raising this, so we must watch this space.

As for the supposed “voluntary” participation of mental health suffering persons on benefits, they will indeed also face some expectation to participate in measures that assess their work capability and that may assist in getting them “prepared” for taking on employment. This has already been covered in other posts on this blog, and such requirements are stated in the Social Security Act.

According to the Associate Minister an “evaluation” of MHES and SPES will be due later in 2015. As the government has a habit to publish bad reports late on Fridays, or just before long weekends, I presume that such an evaluation report will be presented just before Christmas, so that the media and the public will not pay much attention to it, because then they will have other (important) things on their minds.

As for the sought data on job placements, that could not be included in the post above, a complaint is now before the Office of Ombudsmen, still very slow at being progressed, as we have been advised. Clearly MSD did not provide all the information sought, and the Ombudsman will have to ask the Ministry (yet again), why they did not provide the specified information that should be readily available by now.

 
 


ADDENDUM 2: “BACK-TO-WORK PROGRAMME LABELLED A FAIL”, NZ HERALD REPORT FROM 17 SEPTEMBER 2015 (added 05 Nov. 2015):

In the meantime we have been getting the first solid media reports revealing information that the MHES (Mental Health Employment Service) and SPES (Sole Parent Employment Service) – that MSD has contracted out with various private service providers – are failing.

The ‘New Zealand Herald reported on it under the following title:
Back-to-work programme labelled a fail, and the full article can be found via this link:
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11514141

Extracts:
“A multimillion-dollar scheme to get beneficiaries with mental health conditions and sole parents back to work appears to have flopped.
Work and Income has already spent more than $7.3 million on the new services, part of wider reforms.
Up to 2000 people at a time are on the trial programmes, which offer extra services such as employment placement and in-work support.
The aim is to help beneficiaries return to and stay in work.”

“A full midpoint evaluation of the programmes, which began in September 2013 and will run until next June, has been delayed until later this year.
But an April 7 briefing to Social Development Minister Anne Tolley, released to Labour under the Official Information Act, shows that those on the programme did not stay in work for longer, or earn more.”

“”At the 12-month evaluation point in September 2014, the impact monitoring showed no detectable impact on off-benefit outcomes or earnings outcomes for the Mental Health Employment Service contracted trial compared to internal Work and Income services,” the report said.
A 3 per cent lift in off-benefit outcomes for sole parents was noted, compared with a control group, but this was not statistically significant.”

Own Comments:

So it is no wonder then, that we get no reliable or no figures at all on the actual numbers of referred persons to those services, who managed to get work and stay in work for any significant time.

 
 

ADDENDUM 3: NEW OIA RESPONSE BY MSD FROM 19 NOV. 2015 REVEALS ONLY A LITTLE MORE ON THE APPARENT FAILURE OF THE MHES AND SPES TRIALS (added 26 Nov. 2015):

 

Here are links to the new response to a range of various requests and questions put to MSD, again some not answered properly or not at all. Also are there two links to the OIA request letters from 08 July 2015:

 

The replies in MSD’s response:
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

 

The request letters:
MSD, O.I.A. request, to C.E. of M.S.D., base benefit break down, anon, 08.07.15

MSD, O.I.A. request, to C.E. of MSD, Bratt, H+D Panel, Reforms, anon, 08.07.15
 

A new post offering more info and comment on this is being prepared and will be published soon!

 

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THE MEDICAL APPEAL BOARD – HOW MSD AND WINZ HAVE DISCRETELY CHANGED THE PROCESS, DISADVANTAGING BENEFICIARIES


THE MEDICAL APPEAL BOARD – HOW MSD AND WINZ HAVE DISCRETELY CHANGED THE PROCESS, FURTHER DISADVANTAGING SICK AND DISABLED ON BENEFITS

 

Contents:

 

A)   INTRODUCTION
B)   MEDICAL APPEAL BOARD – MEMBERS SELECTED, ENDORSED, APPROVED AND APPOINTED BY MSD ADVISORS AND COORDINATORS
C)   THE MEDICAL APPEAL PROCESS AND APPROACH IN DETAIL
D)  MEDICAL APPEAL PROCESS – SOME SPECIAL ASPECTS TO CONSIDER
E)   WITHHELD MAB STATISTICS AND EXPENDITURE DATA
F)   MEDICAL APPEAL BOARD MEMBER PAYMENT
G)   OTHER ASPECTS TO CONSIDER RE THE MAB AND THE LEGISLATION
H)  LACK OF MEDIA COVERAGE AND TRANSPARENCY OF MAB HEARINGS
I)   SUMMARY COMMENTS AND CONCLUSION

 

A) INTRODUCTION

Persons claiming a social security benefit on the grounds of sickness, injury and/or disability, and who have only limited or no capability to work, have according to provisions in the Social Security Act 1964 (the Act) a right to appeal a decision by Work and Income (WINZ), that was made on medical grounds, or based on the assessed capacity to work.

Apart from separate cases relating to the refusal or cancellation of a “child disability allowance”, such decisions (made by a WINZ case manager) will in most cases affect persons that have applied for, or are already on the Supported Living Payment, or the Jobseeker Support benefit. The latter that may be affected are those who applied for, or are claiming the Jobseeker Support benefit with deferred work test obligations, due to sickness, injury and/or disability.

The appeal right is provided for under section 10B in the Act, which was inserted after the Act was amended following the passing of the ‘Social Security (Benefit Categories and Work Focus) Amendment Act’. The new amendments came into effect from mid July 2013. Prior to that, the same right of appeal was provided under section 53A of the old version of the Social Security Act 1964. The now applicable section 10B is roughly three times as long and complex, as the previous one was, mainly due to the introduction of new benefit types, and additional, new expectations and obligations for the affected beneficiaries. In the newly amended Act section 10B reaches from page 70 to the bottom of page 73, in the former Act the relevant section 53A filled just over one page.

Persons that may see a reason and need to appeal a decision by a WINZ case manager, who again usually relies on “recommendations” or “advice” from employed special “Advisors”, are often those who were asked to be examined by a so-called “Designated Doctor”. Others may have been assessed for their “work ability” by the newly introduced “Work Ability Assessors” that the Ministry of Social Development (MSD) and WINZ now contract with (since early 2014). Given the particular contractual arrangements between MSD and those service providers, and due to certain expectations that MSD places in them, and also due to common practices that are followed, it is not uncommon that decisions are made, which appear questionable, unfounded and even plainly biased.

When being informed of their right to appeal, the affected WINZ “clients” may think they have at least a legally granted chance to access and get “justice” by appealing the disputed, unacceptable decision, and by asking for a “Medical Appeals Board” (MAB) hearing under section 10B.

But the “justice” that may at first sight appear to be ensured, is in reality not quite what it seems. Too many only find out the true value of what the statute and other legal provisions offer them, once they have been through the often very complex, difficult, stressful and at times painful process. Disappointment is what many had already experienced with appeals made under the old Social Security Act before its recent changes, where the process was a fair bit simpler and also handled in a bit more flexible manner. But even then there was often the impression that the Board hearing an appeal was not acting as “independently” as it was supposed to be.

There were certainly a good number of reasons for criticism of the former process of hearing medical appeals under the Act, but with the “reforms” over the last couple of years, the process and activities related to it have now become even more worrisome.

Without any knowledge of the wider public, the Ministry of Social Development has in 2013 made further changes to the Medical Appeal Board hearing process, which are partly not even covered by the Act. They have basically “re-jigged” the whole process in ways, which do in effect make it even harder for appellants to be heard fairly and equitably, yet MSD talk so much more about “natural justice” and the need for it, than they ever did before. This can only be described as a misguided way to offer “justice”, while the affected are in fact hardly given fair and reasonable access to justice.

This publication reveals, explains and covers what the current MAB process really means, what changes have discretely been made without public consultation, and how this will adversely affect the appellants in various ways. It is largely based on information in a recently obtained copy of the so-called ‘Medical Appeals Board – Board Members Information Pack’ (released July 2013, in time for the new “welfare regime”). That is the official “guide” or “manual” MAB Members use for “training” and for their guidance in hearing appeals. It has replaced an older version, of which we have a copy also (obtained in 2012). Also used as valuable information sources have been a number of responses from MSD to Official Information Act 1982 (OIA) requests, which contain little known information about the “Advisors” who MSD use, about how they use “Designated Doctors” and how the MABs are operating. Additional to that some reports and other relevant information found via certain media and other sources on the internet have been analysed and referred to.

To first of all get an understanding of the law about appeals on medical grounds, here is the actual section 10B as it is valid now:

Extract from the Act:

 

“10B Right of appeal on medical grounds”

(1) Any applicant or beneficiary affected may appeal to the Board against a decision of the chief executive that is —
(a) a decision that a claim for a child disability allowance is declined, or that any such allowance is cancelled, in either case on the ground that the child is not a child with a serious disability (within the meaning of section 39A(1) and (2)); or
(b) a decision that a claim for a supported living payment on the ground of sickness, injury, disability, or total blindness is declined, or that any such benefit is cancelled, in case on medical grounds; or
(c) a decision under section 60Q(1)(bb) that a person in receipt of a supported living payment on the ground of sickness, injury, disability, or total blindness has the capacity to comply with obligations under section 60Q(3); or
(d) a decision under section 60Q(1)(bc) that a person in receipt of a supported living payment on the ground of caring for a patient requiring care has the capacity to comply with obligations under section 60Q(3); or
(e) a decision that a claim for jobseeker support on the ground of sickness, injury, or disability is declined on medical grounds or on grounds relating to a person’s capacity for work, or that a person’s jobseeker support on the ground of sickness, injury, or disability is cancelled on medical grounds or on grounds relating to the person’s capacity for work; or
(f) a determination under section 88F(2) that a jobseeker support beneficiary on the ground of sickness, injury, or disability has, while receiving that benefit, the capacity to seek, undertake, and be available for part-time work, and so is required to comply with the work test on and after a date specified in a notice under section 88F(4); or
(g) a confirmation, amendment, revocation, or replacement under section 88F(6) of a determination, and that results in a determination of the kind specified in paragraph (f)
of this subsection; or
(h) a decision on medical grounds under section 88I(2) to decline an application under section 88H(2) by a beneficiary granted jobseeker support (other than jobseeker support granted on the ground of sickness, injury, or disability) for deferral of all or any of the beneficiary’s work test obligations; or
(i) a decision on medical grounds under section 88I(7) to revoke a deferral granted under section 88I of all or any work test obligations of a beneficiary granted—
(i) jobseeker support (other than jobseeker support granted on the ground of sickness, injury, or disability); or
(ii) jobseeker support granted on the ground of sickness, injury, or disability; or
(j) any of the following made in reliance on any work ability assessment by a health practitioner under section 100B:
(i) a determination whether the person assessed is entitled to a benefit and, if so, what kind of benefit:
(ii) a determination whether the person assessed, being a person in receipt of jobseeker support (other than jobseeker support granted on the ground of sickness, injury, or disability), is entitled on an application under section 88H, or under section 88I(4), to deferral of work test obligations under section 88I:
(iii) a determination whether the person assessed, being a person in receipt of jobseeker support on the ground of sickness, injury, or disability, has for the purposes of section 88F(2) the capacity to seek, undertake, and be available for part-time work:
(iv) a determination whether the person assessed, being a person who is subject to work test obligations or work preparation obligations under section 60Q, has the capacity to meet those obligations; or
(k) a decision under section 116C(2)(a) to the effect that a beneficiary does not have a good sufficient reason, on the ground that the beneficiary is addicted to, or dependent on, controlled drugs, for either or both:
(i) not complying with a drug testing obligation under section 102B(1):
(ii) failing to apply for suitable employment that requires candidates to undertake drug tests; or
(l) a decision to decline a claim for a veteran’s pension under section 70 of the War Pensions Act 1954, or to cancel any such pension, in either case on the ground of the applicant’s or beneficiary’s mental or physical infirmity.

(2) An appeal under this section must be made within—
(a) 3 months after the decision has been communicated to that person; or
(b) any further period the Board may (if it considers there is good reason for the delay) allow on application made before or after the end of that 3-month period.

(3) The chief executive is bound by the Board’s decision on an appeal under this section.

(4) The Board is to comprise 3 members to be appointed by the chief executive for the particular purpose, being medical practitioners, rehabilitation professionals (as defined in subsection (5)), or other persons having appropriate expertise in the fields of vocational training or vocational support for persons with sickness, injury, or disability.

(5) Rehabilitation professional, in subsection (4), means a person who is—
(a) a person professionally engaged in the rehabilitation of persons from sickness or accident or with disabilities; or
(b) a nurse; or
(c) an occupational therapist; or
(d) a physiotherapist; or
(e) a psychologist.

 
 

B) MEDICAL APPEAL BOARD – MEMBERS SELECTED, ENDORSED, APPROVED AND APPOINTED BY MSD ADVISORS AND COORDINATORS

1. The Ministry itself appoints the MAB Members

A Medical Appeal Board consists of 3 panel members, being mostly medical practitioners (usually GPs, who are mostly also “Designated Doctors”) and some rehabilitation professionals, such as occupational therapists, physiotherapists, nurses and psychologists. But even “others with appropriate expertise in the fields of vocational training or vocational support” appear to be considered suitable for being appointed to such a Board. See section 10B (4) and (5) for details on this. The newly obtained ‘Medical Appeals Board – Board Members Information Pack’ and information on the WINZ website state, that at least one member of the panel is supposed to be a medical practitioner. One member should also be appointed as chairperson. Officially no more than one panel member is supposed to be a “Designated Doctor” (DD), but as we will see, that limitation is not adhered to in practice.

The Medical Appeal Board is according to section 10B (4) of the Act appointed by the Chief Executive (of the Ministry of Social Development)! This is the first fact that should alert any person who is appealing a decision by a WINZ case manager, and applying to have her/his case heard by such a Board. This is NOT a judicial kind of body that is appointed as independently in the same way as judges and other adjudicators of other hearing panels are.

It is indeed the very Ministry itself (MSD with their department WINZ), that is responsible for the decision that is being challenged (which is to be reviewed), that appoints the Board hearing the case. To make it appear more “independent”, the Ministry employs a so-called “Appeals Coordinator” in each of its administrative regions, who is a staff member of MSD that appoints the 3 panel members from a pool of medical practitioners and other health- or rehabilitation professionals that they have pre-selected for that purpose. Most of the medical practitioners that they may ask to appear on a MAB panel are also “Designated Doctors”*, who they frequently use for examining clients with health conditions, injury and disability, where “second opinions” may be necessary.

* Re “Designated Doctors” read this interesting post:
https://nzsocialjusticeblog2013.wordpress.com/2013/12/28/designated-doctors-used-by-work-and-income-some-also-used-by-acc-the-truth-about-them/

Information on the appointment of members to a MAB is presented on page 13 of the ‘Medical Appeals Board – Board Members Information Pack’. We will occasionally and for simplicity refer to it as the “Info Pack”. On that page it clearly states: “The Ministry will identify suitable members to participate on the MAB.” Furthermore the information says: “To assist with the process MAB members are trained and provided with the Medical Appeals Board: Board Members Information Pack, copies of the relevant guides for medical practitioners and the relevant legislation.” Upon reading that, one must ask him-/herself, what criteria will the Ministry use to “identify” a “suitable” member?

 

2. The Chief Executive’s appointment of the MAB is in conflict with “natural justice”

In view of the above, it appears somewhat peculiar for MSD to start in their ‘Medical Appeals Board: Board Members Information Pack’ (from July 2013) with rather comprehensively explaining the meaning and importance of “natural justice” (see pages 5 and 6, and also pages 32 and 33).

One major principle of natural justice is “nemo iudex in causa sua”, which means “no-one should be a judge in his own cause”, and Wikipedia rightly states: “It is a principle of natural justice that no person can judge a case in which they have an interest.” See this link to the more comprehensive explanation of that legal term:
http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua

 

Now MSD may claim, that they are not themselves sitting as a “judge” on the MAB, and technically that is correct, but there are other important factors to consider, proving that they have other mechanisms in place, that ensure the appointments the Chief Executive makes give significant consideration to the interests of MSD. And in view of that, who would dare to claim that MSD have “no interest” in the outcome of the hearing, given the fact they are potentially liable to pay benefits dependent on the outcome?

Uninformed readers of the “Info Pack” may feel more reassured when reading on page 14 under “Impartiality and disqualification”: “A MAB is an independent Board for reviewing appeals and they must act accordingly. They need to take great care to make sure they openly act independently and fairly. A Board member is not on the MAB as a representative of the Ministry.” The “Info Pack” also states: “The role of the MAB is to independently review the Ministry’s decision in accordance with the law. The Board must review the client’s eligibility for benefit on medical grounds, capacity for part-time work, or for capacity to undertake work independently. In addition they should be seen to be impartial.”

That relevant section then lists a range of scenarios to consider, where lack of impartiality may be of concern, but it omits some other very important information.

Also worth to consider is the following comment at the bottom of page 14, under “Member availability”: “Each region has a pool of available MAB members.” And especially this should be noted: “There is no limit to the number of times someone can be a member of the Board.”

Under “Payment” (bottom, page 14) it becomes clear, that MSD themselves pay the Board members, via their ‘National Accounting Centre’.

All the comments about “natural justice” may seem honest and appear to make sense. But what is not mentioned in the ‘MAB Members Information Pack’, nor in the so-called ‘Guide for Designated Doctors’ and in the legislation, is the important role the very influential “Advisors” behind the scenes have in finding, endorsing and preparing medical practitioners and rehabilitation professionals for acting as “Designated Doctors” and MAB panel members.

 

3. The involvement of “Advisors” and “Coordinators” in finding, selecting and approving “Designated Doctors” and also MAB Members

There is no direct mention in the MAB “Information Pack” about the other key players that MSD employs, who are doing a lot of background-work, liaising and consulting with medical practitioners, especially general practitioners (GPs), yes who even “train” and “mentor” them. These so-called “Advisors” and “Coordinators” are also involved in finding and recommending GPs that MSD wishes to engage as “Designated Doctors” – and also as potential MAB panel members. The “Advisors” are the “Regional Health Advisors” (RHAs) and “Regional Disability Advisors” (RDAs), and the “Coordinators” are the “Health and Disability Coordinators” (HDCs), who are based in each Regional Office of the Ministry. They do actually endorse “candidates” that appear suitable, interested and motivated in working for MSD. They all receive on-going “training”, not just through the formal, official guides, such as the “Information Pack” for MAB members here, or the ‘Guide for Designated Doctors’, they also receive other “guidance” and “mentoring”, directly from “Principal Health AdvisorDr David Bratt, who has in many of his past “presentations” likened benefit dependence to “drug dependence”. That must raise serious questions about his professional objectivity, or lack thereof. He has a very firm if not extreme view on “work ability”, and he relies heavily on selectively chosen research, mostly from the “Centre for Psychosocial and Disability Research” in Cardiff, Wales, which was once “sponsored” by the UK subsidiary of controversial US health and disability insurance giant UNUM.

Dr Bratt has worked closely with UK Professor Mansel Aylward (head of the mentioned “Centre” in Cardiff), who has very actively been lobbying for a very “relentless” approach using his own interpretation of the so-called “bio-psycho-social model” for diagnosis, assessment and treatment of sickness and various disabling disorders or conditions. He has claimed that many “illnesses” are rather based on “illness belief”, attitude and social factors, and that many “common mental health problems” and other “common health problems” are not such serious conditions, that should stop people from working.

To get an idea of Dr Bratt and his position on “work ability”, it pays to look at some of his bizarre “presentations” that he gave at GP conferences and also for medical professional trainers. The information presented in them is a collection of hand-picked statistical and supposedly also “medical scientific” information, as well as some “quotes” from hand selected “experts”, all meant to prove the great harm caused by “worklessness”, and contrary to that the presumed “health benefits of work”. In past presentations he made frequent comparisons between supposedly “harmful” benefit dependence and “drug dependence”.

Here are links to three examples of these presentations that have been and are available via the internet:
Ready, Steady, Crook – Are we killing our patients with kindness? (see pages 13, 20 ,21 and 35):
http://www.gpcme.co.nz/pdf/GP%20CME/Friday/C1%201515%20Bratt-Hawker.pdf

Medical Certificates are Clinical Instruments Too! (see pages 16, 19, 20 and 33):
http://www.gpcme.co.nz/pdf/2012/Fri_DaVinci_1400_Bratt_Medical%20Certificates%20are%20Clinical%20Instruments%20too%20-%20June%202012.pdf

Pressure / No Pressure – Strategies for Pushy Patients (see slide 27!):
http://www.google.co.nz/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=0CDMQFjAE&url=http%3A%2F%2Fwww.rgpn.org.nz%2FNetwork%2Fmedia%2Fdocuments%2FConference2011%2FD-Bratt.ppt&ei=TgQIVdLLH4qP8QWxnYBQ&usg=AFQjCNFEdYN_dDW9BAZvZo_cQpC2rFyelg

 

Here are links to PDF files with evidence that MSD have trained Designated Doctors and their “Advisors”, much of this being done by Dr David Bratt as PHA himself:
MSD, Des. Dr Training, Comm. Requiremts, J. Russell, M. Mortensen, memo, hi-lit, 23.01.2008
MSD, Design. Dr Training Workshop, and H+D Coordntr, info sheet, Rankin, Bratt, 12.08.2008

 

The already mentioned Regional Health and Disability Advisors do “endorse” practitioners who may be prepared to work as “Designated Doctors” and/or serve as MAB Panel members, but it is Dr Bratt, who has usually the last say as to who is accepted as a “designated doctor”. His colleague, Principal Disability Advisor Ann Hawker, is largely very silent, and appears to stay in the background, on all these matters.
As the MAB hearing panel members are often also “Designated Doctors”, and as these doctors do in many hearings represent more than one member of the 3-member panel, it becomes evident, that the so much proclaimed “independence” may get a whole new meaning, once these facts are also considered. It is also the “Health and Disability Coordinator” for the relevant region, who has the last say about who ends up in the pool of MAB hearing panel members. The “Medical Appeals Coordinator” is then simply picking panel members from that maintained pool, and as mentioned in the “Info Pack”, some members can be called upon again and again. So members that may turn out to deliver the outcomes that WINZ and MSD prefer, can in that case simply be picked to do more hearings, potentially serving the very interests of MSD.

See the following links to position descriptions for ‘Regional Health Advisor’, ‘Regional Disability Advisor’, ‘Health and Disability Coordinator’ and ‘Principal Health Advisor’, containing relevant information showing their wider responsibilities:
MSD, O.I.A. Request, Reg. Health Advisor, position description, highlighted points, Feb., 2007
MSD, O.I.A. Request, Regional Disability Advisor, position description, Feb. 2007
MSD, O.I.A. Request, Health + Disab.Coordinator, pos. descrptn, highlighted points, Feb. 2007
MSD, O.I.A. Request, Princ. Health Advisor, position description, highlighted points, Jan. 2007

See this OIA response from MSD’s then Deputy Chief Executive Debbie Power dated 12 July 2013, revealing the names of the mostly long serving RHAs and RDAs, and what actual qualifications they have. At the end there is also a table showing that MAB appeals from 01 July 2012 to 30 April 2013 led to 74 percent of WINZ decisions being upheld, and only 26 percent being overturned:
MSD, O.I.A. Request, DDs, MABs, training, ltr fr. D. Power, C.E., w. MAB table, anon., 12.07.13

See the questions put to MSD, by way of an OIA request letter from 11 June 2013:
M.S.D., O.I.A., request, anonymous, re DDrs, MABs, PHA, PDA, training, draft, 11.06.13

See also a link to a PDF file with the application form for “Designated Doctors”, showing on the last page the boxes to tick and spaces to fill in, where RHAs and RDAs “endorse” them, and where the Principal Health Advisor or Principal Disability Advisor can then “approve” them (under “Office use only”):
http://www.workandincome.govt.nz/documents/forms/designated-doctor-application.pdf

Offering further insight into the workings of “Designated Doctors”, the mentioned “Advisors” and how MAB panels are appointed, read this interesting OIA response from former Chief Executive of MSD, Peter Huges, from March 2011:
MSD, O.I.A. request, Design. Drs, MAB appeals, RHAs, RDAs, C.E.’s response, March 2011, re anonymous
Read especially his answers to questions 14, 15, 16, 17 and 18!!!

The special roles of Principal Health Advisor, Principal Disability Advisor, Regional Health Advisor, Regional Disability Advisor and Health and Disability Coordinator were created and appointed by MSD in 2007 under the last Labour led government. They are roles fulfilling functions that the Chief Executive can delegate according to provisions in the State Sector Act 1988. I refer you to former Chief Executive Peter Hughes’ response to request point 12 on page 3 of his letter from March 2011. The “Advisors” are therefore not “ordinary” staff, but still work for MSD.

At the top of page 5 of that OIA response Peter Hughes also makes clear: “I can advise that it is normal practice for more than one Designated Doctor to sit on the Medical Appeal Board.”

 

4. Qualifications of MAB hearing members

The MAB “Members Information Pack” lists the kinds of qualifications that panel members are expected to have. A list of designated doctors obtained in August 2012 shows that the vast majority of them are simply general practitioners (GPs). It must be presumed that most members on MABs are also general practitioners.

See this link to a PDF with relevant information:
MSD, Designated Doctor List, complete, as in August 2012

This is much in line with the figures previously supplied by Peter Hughes in the OIA response received in March 2011 (see again his answer to question 14, on page 4 in the document referred to above). Under the answer to question 18 in that same OIA response Peter Hughes also revealed that of the 10 medical practitioners on the MAB in Auckland 6 were “Designated Doctors”.

See again this link to a PDF document with that info:
MSD, O.I.A. request, Design. Drs, MAB appeals, RHAs, RDAs, C.E.’s response, March 2011, re anonymous

Of the other qualifications listed in section 10B of the Act, and in the “Info Pack”, MSD will pick the Members possessing such, who were also consulted with by RHAs, RDAs and HDCs. It can be reasonably presumed, which is confirmed by anecdotal evidence, that only a small number of “Rehabilitation Professionals” will sit on a MAB panel, like for instance specialist nurses, occupational therapists, physiotherapists or psychologists. As for the latter, there has in Peter Hughes’ letter and other information been little or no evidence of psychologists being part of such hearing panels.

There is no information we have on persons with appropriate expertise in vocational training or vocational support for persons with sickness, injury or disability, sitting on MABs, but given recent developments as a result of the major reforms in 2013, there may well be some increased involvement of such professionals in hearing some cases now.

 

5. MAB Members are guided by the AFOEM’s questionable position statements on the “health benefits of work” (influenced by Mansel Aylward)

The ‘Australasian Faculty of Occupational and Environmental Medicine’ (AFOEM) has since 2010 progressively adopted the new approaches propagated by Professor Aylward and some like-minded “experts” based in the UK, primarily at the ‘Centre for Psychosocial and Disability Research’ (formerly “sponsored” by UNUM Provident) in Cardiff, Wales. The AFOEM has formulated a number of documents on the supposed “health benefits of work”. This was facilitated under the Presidency of former Atos Healthcare employee Dr David Beaumont. As the ‘Royal Australasian College of Physicians’ (RACP) and the AFOEM set the agenda or direction for what new healthcare approaches are promoted and followed in medical science and treatment in New Zealand and Australia, and as even the ‘Royal New Zealand College of General Practitioners’ (RNZCGP) and other organisations have signed up to support the same “position statements”, it must sadly be concluded, that the whole medical profession in both countries is now loyally applying Aylward’s recommended approaches.

The MSD has enthusiastically welcomed this and included a reference to the AFOEM’s position statement on the “health benefits of work” on their ‘Work Capacity Medical Certificate’ that doctors are now expected to complete for WINZ clients. All this appears to be part of a well planned strategy, to gradually reset medical criteria and to reformulate the meaning of sickness and the capacity for work, all done with the sole major aim, to reduce welfare numbers and costs!

See these links to the AFOEM (as part of the RACP) website with info on their “positions statements” and Mansel Aylward’s crucial involvement:
http://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
http://www.racp.edu.au/docs/default-source/default-document-library/read-realising-the-health-benefits-of-work-position-statement-october-2011-%28pdf-654kb%29.pdf?sfvrsn=0
https://www.racp.edu.au/
https://www.racp.edu.au/advocacy/division-faculty-and-chapter-priorities/faculty-of-occupational-environmental-medicine
https://www.racp.edu.au/advocacy/division-faculty-and-chapter-priorities/faculty-of-rehabilitation-medicine

UPDATE from 20 Sept. 2016: The RACP / AFOEM website has recently been restructured and redesigned, and a number of former documents, and even videos, on their ‘Position Statement’ on the supposed ‘Health Benefits of Work’, have since disappeared. It seems that this is at least partly due to concerns about initially made bold claims, which have been found to be incorrect and lacking evidence. This also coincided with the departure of former AFOEM President Dr David Beaumont (a former ATOS Origin consultant from the UK), who was instrumental in getting the controversial UK Prof. Aylward involved in launching their Statement. Readers should also take note of a ‘Viewpoint’ article by researcher Gordon Purdie, in the New Zealand Medical Journal from 20 Nov. 2015, under the following link:
https://www.nzma.org.nz/journal/read-the-journal/all-issues/2010-2019/2015/vol-128-no-1425-20-november-2015/6729
https://www.nzma.org.nz/__data/assets/pdf_file/0005/45905/Purdie-1874FINAL1425.pdf

 
 

C) THE MEDICAL APPEAL PROCESS AND APPROACH IN DETAIL

1. The MAB process has changed with the introduction of a new welfare regime

The process followed for Medical Appeal Board hearings has changed a fair bit since the reforms changed much of the Social Security Act in 2013. The new process appears to be adjusted to be more in line with the general, now more draconian approach in assessing sick, injured and disabled for their capacity to work. The ‘Medical Appeals Board – Board Members Information Pack’, released in July 2013, reveals what changes have been made. There was until a couple of years ago another guide in use, called the ‘Medical Appeals Board – A resource for Board Members’. A copy obtained from a trusted source in 2012 shows a somewhat different process being followed then, which was less complex, not as detailed, less clear, and probably applied in a more flexible manner.

But like already then, the process is now usually started by the affected WINZ benefit applicant or recipient making a written request for a review, or actually right away an application for an appeal, against a decision made by WINZ based on medical grounds or on a client’s assessed work ability, usually by one of their case managers.

As the newly amended Social Security Act now contains many new OBLIGATIONS for beneficiaries, the current process does not only review decisions made on simple health grounds, but also those where the imposition of certain obligations, like for instance work preparation, or work test obligations, were part of the decision. There are a few fundamental changes that were made to the former process that will be explained in the following.

Here are first of all 2 PDF files with copies of the ‘Medical Appeals Board Board Members Information Pact’ (released July 2013) and of the older ‘Medical Appeals Board – A resource for Board Members’ (as it was in 2012), obtained from trusted, confidential sources:
Medical Appeals Board – Board Members information pack for release, July 2013
MSD, Medical Appeal Board, Resource for Bd Members, manual, undated, rec’d Jan. 2012

Of some interest may also be an older ‘Guide for Designated Doctors‘, that was available for download in 2011, but seems to be out of date now:
MSD, Work + Income, guide-for-designated-doctors, current, downloaded, 18.04.2011

 

2. The new MAB process is outlined in the ‘MAB Members Information Pack’

The jurisdiction of the MAB is explained on page 15 of the ‘MAB Members Information Pack’, and it does reflect the provisions in the Social Security Act. At the top of page 17 the “Info Pack” also states that an appeal can only be heard once. That means an appeal can only be heard once for the particular decision it relates to. An appeal must usually be made within three months, but a MAB can in some cases allow exceptions to that rule, if an appealing client can give good reasons for this to be granted. This is in line with previous provisions.

As for the pre hearing process, a client can appeal in writing to the MAB if she/he disagrees with a decision made by WINZ (MSD) on eligibility or obligations based on medical grounds, or on grounds relating to capacity for work. The decision and appeal must fall under the provisions of section10B of the Act. Before a hearing is set, the client will be asked to meet with the case manager who made the decision, or if the client insists on seeing another staff member, meet with that person, to discuss the appeal and certain other relevant details.

If the WINZ case manager and client cannot resolve matters leading to a review of the decision, the matter will then be forwarded to the “Appeals Coordinator”, who will conduct a formal internal review of the matter. Any new information the client presents will be considered during this review. Prior to changes in 2013 the Coordinator only performed an “administrative check” of the challenged original decision, not a proper, formal internal review of it. So this pre hearing review must be welcomed as a positive change. If that (further) internal review finds that the initial decision was in part or fully “correct”, then the Coordinator will contact Board Members to set up a MAB hearing. A Process Flowchart on page 10 of the “Info Pack” shows the steps that WINZ, the Coordinator and then the MAB follow. The client and appointed MAB members will be contacted, and all will be sent a prepared ‘Report for the Medical Appeals Board’ (see also page 19 of the “Info Pack”). This Report summarises and presents the case to the appellant and MAB Members in a slightly different, apparently more “standardised” way than it used to be done.

 

3. The Report for the MAB

The “Report” is meant to be kept in a “standard format”, and according to the guide it “will accurately and concisely summarise what the appeal is about”. Appendix 19 shows a draft ‘Report’ format, which appears to limit what a client may be able to have as any input here. It is clear that this ‘Report’ is actually prepared by the MSD employed Coordinator, possibly in cooperation with a WINZ case manager. Therefore it will inevitably rather represent the case from MSD’s point of view, and will be kept very short and succinct, so as to not allow much discussion or interpretation of stated details.

Under ‘Section 2 – Summary of facts’, which is supposed to represent crucial facts, at least relevant information like medical certificates and reports, from host and designated doctors, specialists, work ability assessors and so will be attached, which must be expected. But then there is a mention of “list any advice sought and received from other parties and any relevant information that supports the decision made”. And there we have it, the ‘Regional Health or Regional Disability Advisor’ are mentioned, also the “Principal Advisors”! As already mentioned above, these “Advisors” can hardly be seen as independent ones, given the kind of training, mentoring and guidance they get, all based on the “new approaches” recommended by Mansel Aylward and like minded UK “experts”. And of course, they are employed, trained and paid by MSD!

Under ‘Section 3 – Case for the client’, it appears the client’s case is summarised. This can only be done with client input, and it depends on how much of that will be encouraged and allowed, by the case manager who advises the client on appeals, whether this can be considered as “fair” or not so. It would appear that this information is primarily, possibly almost exclusively, based on the appeal application made by the client. Without good, independent advice (certainly not from a WINZ case manager) a client is likely to be poorly advised to prepare for an appeal. As it is limited what a client can present to be included in this kind of ‘Report’, it is of utmost importance, that an application for an appeal is as precise, detailed and comprehensive as possible, and is also accompanied by relevant, important documentation that is essential to be considered. It appears absolutely essential for a client to start preparing any submissions right from the start, and present them in writing, after consultation with a good, experienced, competent advocate, or better a legal advisor. All relevant medical and other important information must be included and documented.

Under ‘Section 4 – Case for the Ministry of Social Development’, the Coordinator is meant to present evidence and other relevant information the Ministry deems essential. Here it becomes totally clear, that the Ministry (WINZ) have a clear advantage in the process, as they will have all the resources to their avail, to present strong legal arguments, to refer to legislation, to present relevant documentation they have, and to point out policy and procedural matters that they wish to be considered. We must bear in mind also, that the reforms based on completely new policy and new approaches have led to significant changes to the Social Security Act, which now imposes more expectations, obligations and also sanctions on clients claiming benefits. The reforms have brought in a totally new approach, where “work ability” is considered under different kinds of criteria, similar to the approach that has been used in the UK. The involvement of the mentioned “Advisors” providing their “recommendations” comes into play, and even the medical profession now appears to be compromised, as it is expected to work within the new legal and policy framework, and to rather look at what a person “can do” than what they “cannot do”.

Traditional, objective medical scientific diagnosis, assessment and treatment is no longer accepted without a challenge, and hence the very MAB Members, same as the “Advisors” MSD employ, will all be bound to adhere to the above, and review appeals accordingly.

And as if the Ministry has with this not already got enough “clout” to use in the process, ‘Section 5 – Conclusion’ does offer it another chance to state its expectations, to ensure it has the last word in appeal hearings. One should expect a NEUTRAL ‘Conclusion’, given the fact that the MAB is supposed to be appointed by a “neutral” Coordinator, acting without taking sides, despite of being a MSD staff member her-/himself, but that is not what we get.

No, it says the following:
“In this section:
state that the Ministry considers the decision under appeal to have been made correctly
– provide a brief and concise statement which outlines the reason for the decision.”

Therefore this ‘Report’ already presents a start to the process that is at least slightly favouring the MSD before the appellant, given the type, quality and weight of information allowed to be included, and the fact that it is a report prepared by a person working as an official employee of MSD. Without any legal advice any appellant will have a significant disadvantage from the outset of this process.

 

4. Further information presented for the appeal

On the bottom of page 19 of the “Info Pack” it mentions that further information and submissions can be presented by the client and their representative, which I think is an absolute must, in order to be heard and given due consideration by the MAB. Indeed both the appellant and the Ministry can produce “new information” during the hearing process, as it states at the top of page 20. Such information can be presented before or during the hearing, and in the latter case a hearing may need to be adjourned. The client must ensure that any submission is also presented to the Ministry, which can and will usually happen via the Coordinator. Sufficient time must be given to the other party to consider the information.

What some MAB Members have in the past not sufficiently understood is the fact, that a MAB must NOT examine the client / appellant! This has happened on some occasions, but by doing so, the MAB panel would automatically disqualify themselves, and the hearing would be legally invalid, and an appeal would need to be heard anew. A further medical examination of the appellant can only be done by another examiner who is not part of the hearing process, and a hearing can be adjourned pending the result of such examination. If the client does not agree to a further medical examination, then a hearing may be conducted on paper and on evidence already before the MAB. New medical and other relevant information can still be presented after a hearing, and before a decision is made and sent to the appellant. Then it must again be considered by the other party and the panel. If new information is available and presented after the MAB decision, it cannot be considered and will not change the decision, and can instead only be considered by the responsible WINZ branch through reviewing a situation according to section 81 of the Act. That may though also involve a further re-examination by a “Designated Doctor” or so. A new decision made after that is then open for another appeal, if the client sees a need for that (see page 21).

 

5. The newly introduced Ministry’s “presenter” upsets the power balance in MAB hearings

Probably the major new change to the MAB process is the now common involvement of a “presenter” before a hearing panel, to present the case of the Ministry. This was not part of appeals heard before the changes, as far as we can establish, and creates something of a further imbalance that does clearly favour the Ministry of Social Development.

Under “Personal representations” on page 22 of the “Info Pack” it says: “The client may attend in person at the appeal hearing. If the client chooses to attend then the Ministry presenter should also attend. If the client chooses not to attend the hearing then the Ministry presenter does not attend either.

Already at the bottom of page 5 of the “MAB Members Information Pack” do we read under the heading “Natural Justice”:
“Although it is important to treat both the Ministry and the client equally, Board members should recognise that the Ministry has a natural advantage. The Ministry presenter will have access to the relevant law, policy and legal advice; the client may not have this.”

The following comments that the Board should minimise this imbalance by “ensuring the client has a full opportunity to be heard”, are unconvincing, as it will solve little.

Although there is NO provision in the Social Security Act for the attendance of such a presenter, and although this was apparently never practice, the Ministry appears to have thought, that this is what “natural justice” allows them to do, as it allows them “to be heard”.

But given the fact, that the whole process does already give the Ministry a significant advantage, due to its access to expert legal and other advice that can already be included in the ‘Report for the Medical Appeals Board’, due to its generous financial resources (paid by the taxpayers), and its inside knowledge of procedures, processes and policy, this development must be treated with greatest concern and deserves strongest criticism.

The Ministry does already appoint the MAB Members, provides them with their training and guidance, pays the MAB, insists on the MAB to adhere to new medical and work ability assessment criteria and approaches, and sets the policy framework they must follow when reviewing appeals. The Ministry’s Advisors and Coordinators play an additional role in communicating certain expectations, in finding, selecting, endorsing and approving MAB members, and the whole process is thus already stacked against the appellant, usually equipped with very few resources, with limited knowledge and often no legal advice.

Also do the mentioned RHAs, and RDAs, often upon consultation with one of the Principal Advisors at Head Office, make their own recommendations on clients’ health and ability to work to the decision-making case managers. They will therefore – as special consultants employed by MSD – contribute to disputed decisions, while they are at least indirectly also involved in the appointment of MAB Members (often “Designated Doctors”).

The presenter will have ready access to (internally available) legal advice, which the appellant is likely to not have. The presenter is not medically qualified, so will have little competence in commenting on relevant medical information. Such information will already be available, as it will already have been provided to WINZ and the panel by a client’s own doctor, perhaps by a “Designated Doctor”, by another specialist or a Work Ability Assessor. The presenter may simply justify her/his decision, while the layperson WINZ client will have to argue her/his case without similar professional insight. Apart from simply stating or confirming facts that should already have been presented to the MAB with the ‘Report’, the presenter is likely to only contribute by arguing legally to justify the decision she/he made.

In the past the MAB was almost purely focused on establishing the true, relevant health conditions or disability, and how this would impact on a person’s ability to work. That would then determine whether an appellant was entitled to certain benefits granted on health grounds, medical conditions and disability. There was only marginal consideration of legal provisions and complexities. That is why the MAB consisted only of medical and rehabilitation professionals. Now the usually layperson client, struggling already with poor health and with disability, is confronted with hearings that do more and more resemble court or tribunal hearings, where legal terminology may play a much greater role, and where she/he will not only be facing questions by MAB panel members, but also face arguments presented by the “Ministry presenter”, who is an expert insider of MSD’s system.

This is hardly a positive, constructive contribution to a fair and reasonable hearing by such a MAB panel. If a presenter is allowed to be heard, then the whole MAB process should be changed from being more of a “medical review” process, to a proper judicial type tribunal, where a panel would also include legal experts, experienced with hearing proper legal cases. Medical and rehabilitation professionals will despite of some training hardly have the needed legal knowledge and experience to conduct proper judicial hearings where questions of law will be discussed. A separate Tribunal should be established, also allowing further appeals to the courts system, and it would certainly need to be appointed by a special board that is totally independent from the MSD!

 

6. Legal representation for the client results in legal representation by the already advantaged Ministry

To complicate things further it says on page 22 in the “Info Pack” under “Resources available to the MAB to help them make its decision”: “If the Board is unsure of a legal point, such as interpreting case law or legislation, then it should ask for legal submissions on that point from the client and the Ministry presenter.”

And then the ‘MAB Members Information Pack’ also states: “If the client does not have legal representation, the Ministry can provide a list of free legal advice providers such as Community Law Centres or Citizen’s Advice Bureaux.”

This is really an audacity for the Ministry and any appointed MAB to deal with raised legal issues in this way. Community Law Centres have due to cuts in government funding been forced to close or reduce their services in some areas, and they don’t usually have the resources or even permission to provide professional legal advice for judicial hearings, which would include MAB hearings as well. They only give general legal advice to citizens, that is limited in scope and depth, and it can seldom be used to form proper, good legal opinions on specific cases. Also are Citizen Advice Bureaus (CABs) only offering rather general legal information, and they usually have little or NO expertise with such MAB hearings. The legal advisors they employ for giving low level advice to citizens can hardly be very useful for specific cases being heard by a judicial kind of body. And to our knowledge NO CAB legal advisor would serve as a representative for a client before any court, tribunal or a MAB.

To make things worse, the “Info Pack” informs on page 23 that clients or appellants bringing a case before a MAB may bring their own representatives or support persons to a hearing. A client may also (formally in writing) appoint an agent, who may be a friend, advocate or legal representative. That sounds good for a start, but if a client comes with a “solicitor” then the Ministry must be informed, so it can then consider whether it wishes to bring their own “solicitor” to the hearing.

It is already difficult for a person dependent on a benefit to cover the day to day living costs, so it is hard to imagine, how a client would be able to afford a legal representative such as a solicitor. As MAB hearings would be considered as being “civil” legal matters, a client would most likely have to apply for legal aid, which is then only granted if a lawyer or solicitor is found, who can also present a case as being likely to succeed. Without that no aid may be paid. Also are there few legal representatives that are experts in social security legislation. It is close to striking a lotto win, to find a lawyer working on pro bono basis.

In short, a client would have a dim chance to get such representation, and if she/he does, then they face the Ministry presenter bringing their own legal representative. And further to this the question arises, how are ordinary doctors and rehab professionals going to cope with legal experts presenting their cases? The MAB would be overwhelmed with legalistic arguments from both sides, and struggle to come to a competent assessment of their own.

This shows how completely unfair the process is, despite of all attempts to stress the importance of “natural justice”, and to assure participants that justice would be done through such a hearing. The “presenter” will in most cases be the very case manager who made the decision that is challenged, and have substantially more information and knowledge about the case, the process, legal provisions and policy than any client may have. And should a client then bring their own solicitor, they get “trumped” by one paid for by the taxpayer, from the pool of experts working for Crown Law, who represent MSD.

The few Advocates that are still active supporting people on benefits are often in such high demand; they will in many cases also not be available to represent a client. Again government funding cuts and caps, and lack of alternative funding, have forced many out of action, and few are available to assist free of charge as volunteers. Apart from that, few if any advocates would have the legal knowledge and expertise to cope with a professional legal representative hired by Crown Law, who is acting for the Ministry.

The process as it is now has never been stacked more in favour of the Ministry as before.

 

 

D) MEDICAL APPEAL PROCESS – SOME SPECIAL ASPECTS TO CONSIDER

1. Pre-hearing procedures, a client’s objections, and requests for recordings

From page 24 in the “Info Pack” the whole MAB hearing process is explained in a bit more detail, covering also the more practical steps that must be taken by the MAB Members.

Under “Pre-hearing procedures” and “Objections” the “Info Pack” states that a client can object to certain persons being Member on a panel, but in this case reference is primarily made to questions that may arise around issues under “natural justice”, where appointed members should be disqualified for reasons already stated on page 14.

There is no mention of the fact, that the composition of such a MAB may not match the health conditions an appellant may suffer from, or the disability that affects an ability to work. Where a person may suffer from psychiatric or psychological conditions, and there is no psychiatrist or psychologist on the MAB, a client should have every reason to challenge the “Coordinator” and MSD, and demand that a health or rehabilitation professional with the appropriate qualifications, expertise and competence sits on the Board. Otherwise there is too great a risk that she/he may not be given fair and reasonable consideration.

The other matters covered are common sense and should be expected practical steps to arrange before a hearing, but special attention must be given to the topic “Requests for taping a hearing”. The “Info Pack” states that a client may ask that the hearing be tape recorded. It also states that the MAB can set its own hearing procedure and that this is an “issue” it must consider itself.

If the MAB decides that a recording of the hearing should be allowed, then the “Info Pack” strangely advises that it may (only) be recorded by using the National Fraud Investigation Unit (a Unit within MSD) equipment that would make three tapes. One would be for the client, one for the MAB and one for the Ministry. There is talk about this being arranged before a hearing, which would then enable the “Coordinator” to arrange this to be in the room for the Board to then decide upon agreeing to recordings or not. But the MAB can refuse recordings, as long as it provides reasons and explains this to the client.

A client who is for instance a very isolated, sick or disabled person, who has no friends, relatives or not even an advocate she/he may be able to “network” with, may only be able to obtain reliable evidence of how a hearing progresses by recording it on audio or video equipment. If this is denied, the client would be seriously disadvantaged, and would have nothing to fall back on, should the hearing have an outcome she/he finds unacceptable. Such a client would under the circumstances also hardly have any resources and ability to apply for a judicial review at the High Court, which would be the only way to challenge a MAB decision, given there is no further appeal right. Hence a Board could shut down any potential challenges to its decision by simply denying a recording, even if this may breach natural justice.

On the other hand, relying only on equipment provided by one party, like in the case of the ‘National Fraud Investigation Unit’, would also be unfair and unreasonable. If the one already significantly advantaged party MSD is allowed to have its equipment used, and the other not, then this creates yet another imbalance that is unacceptable. Also should equipment be used that comes from a truly independent, uninvolved source and NOT from a source that is party to the proceedings.

And in any case, a client MUST be allowed to make their own recordings with her/his own equipment also, should a recording be allowed using MSD’s equipment. This present provision and proposed arrangement is certainly not satisfactory and unacceptable. It again potentially disadvantages the appellant and client.

 

2. The Hearing – procedure and further aspects of concern

It is common practice that a hearing panel can to some degree set its own “process”, as long as it is not in conflict with the statute or other law governing it, and is not in conflict with natural justice. Of course the hearing must be fair and reasonable, and the process must be explained to the participants.

As already mentioned, the “Ministry presenter” does represent a new player in the process, who is in effect creating a further significant imbalance. When the client attends, the “presenter” will also attend, as we already learned. On page 27 of the “Info Pack” it states that the “presenter” is usually the WINZ case manager responsible for the decision. If the original decision maker is unavailable to attend the hearing, another “appropriate member” will attend on the Ministry’s behalf. It says: “This may include another case manager or a service centre manager.” So the Ministry may actually even send a senior staff member such as a service centre manager to attend the hearing, which does tilt the whole process yet further towards an advantage for the Ministry.

Under “Presentations” (page 27) we read that the Ministry often presents its case first to the MAB. There it reads: “This may be because the Ministry has compiled the Report of the Medical Appeals Board.” What actually appears to be meant is that the Ministry (with the “Co-ordinator”) does compile the ‘Report for the Medical Appeals Board’. That means the Ministry also seems to often be given a head start in the hearing. This naturally leaves the client in a somewhat defensive position.

Appellants choosing not to appear before a hearing should be mindful of the fact that their appeal will in that case only be heard on paper. That means, it would be even more important to present proper, good and convincing submissions in writing, should this happen. The panel will only be able to consider evidence put before them, and if that consists only of the ‘Report’ by the “Coordinator”, then the client runs a high risk of important information not being considered, and the hearing leading to an unfavourable, potentially unfair decision.

Important to note from the “Info Pack” is the important guidance provided on “Evidence”, especially in regards to “Standard of Proof” and “Weight of Evidence”. The MAB will decide on the “balance of probabilities”, which has a lower threshold as a standard of proof. It will depend on the capabilities, experience and integrity of MAB members, how well they will apply the stated principles on the use of evidence. The best of intentions may not always suffice to meet the high standards for judicial types of hearings, and to some degree every person will tend to be subjective.

Guidelines set for “Adjournments” and for how to deal with “Disruptions” appear to be set fairly and are in line with usual standards.

On page 32 of the “Info Pack” for MAB Members we can read what guidelines they have to follow when making their “Decisions”. Apart from another section explaining the importance and meaning of “Administrative Law and Natural Justice” it is perhaps very important to note the comments at the top of page 32, which make abundantly clear, that the MAB is instructed to strictly follow applicable LAW. It states:

“It is essential that the Board’s decision reflects the relevant law, and is reached in a fair way. This means that the Board should:

check to ensure that the applicable legislation from the time of the original decision is being applied
● identify and understand the requirements of the legislation
● consider all the options available to the client
fully explain the legal constraints and requirements to the client and ask the client to comment on how he or she meets each specific requirement
decide whether the client meets which, if any, of the specific legislative provisions the MAB are dealing with
● consider seeking legal submissions if unsure of the extent of the application of the ruling to the specific appeal
act within the law.”

As the Social Security Act has now been substantially amended to enable MSD and WINZ to apply new, in part draconian measures, in the form of numerous new work preparation and work test expectations and obligations, this means, that the MAB will be expected to make decisions that are in line with these! Even where principles of “natural justice” will be followed, there are likely to be many cases, where the client will feel that the decision made is actually harsh, unfair and unreasonable, given the legal constraints that exist. This is of course intended, and hence MAB hearings will in a fair number of cases offer little in the way of legal remedies for the appellant. This will be aggravated by circumstances where the clients lack legal and administrative understandings, are poorly prepared, have failed to document everything they need to present for consideration, and where they have no advocacy or legal representation.

The MAB Members must apply the law as it stands, and base their decisions on the legislation and on assessed and presented medical or work capacity criteria. As both have now been redrawn and reformulated, given the social security reforms that came into force in mid July 2013, and given the adoption of “new approaches” for assessing “work capacity”, propagated by such “experts” as Mansel Aylward and some of his colleagues, the MAB Members will feel obligated to make decisions giving substantial consideration to all this.
On page 33 of the “Info Pack” under “Available decisions” it is correctly mentioned that the MAB may uphold, partly uphold or overturn the decision by the Ministry. Only two out of the three MAB Members need to agree on a decision for it to be FINAL!

Appendix 21 to the “Info Pack” shows a draft form of the then completed “Report of the Medical Appeals Board”. It does now look more like a proper, formal legal document, meeting official standards, which was (mostly) not the case with such ‘Reports’ prior to 2013.

 

3. ‘Post-hearing Procedures’ – how the decision must be documented and presented

On page 34 in the “MAB Members Information Pack” we read how the Board members are expected to document and explain their decision. It is made clear that they can and should represent the case and arguments of both parties, of the client and the Ministry. The reasons for the decision must be explained. The Members are expected to make references to relevant legislation and policy, and refer to quotes or provisions, should they justify the decision on relevant law.

The report, generally prepared by the chairperson, must state if not all members agreed, and it must be checked off with each panel member. Only the chairperson needs to sign it. The final report of the decision is sent to the “Coordinator”, who will send a copy to the client. If the Board considers it necessary to send a copy of the report to the client’s practitioner, it must seek the written consent of the client to do so. If the client refuses, then the Board can only recommend that she/he share it with the regular practitioner.

 

4. The ‘Chairperson’s Guide’ – leaving it up to the MAB “to run the hearing in any way”

After presenting about 35 pages of the ‘Medical Appeals Board – Board Members Information Pack’ with stated guidelines to follow, we then read with great astonishment on page 36:
“Please note that this guide is based on a process where the Ministry will present their case first. This does not restrict the way in which a Board may choose to run a hearing in any way.”

So the document is apparently nothing more than a “suggested” guide to follow, and not strictly binding! This leaves a lot of discretion to a MAB and especially the chosen chairperson, to organise and conduct such an important hearing. As non legal professionals make up the MAB, this leaves the whole process up to being interpreted and followed in ways that may not be appropriate, despite of the repeated comments and references made about legislation and “natural justice”.

At least a range of bullet points with basic facts and principles to follow is offered after that, even if it may just be a final, brief summary of the whole contents. One bullet point does then suggest again, that “the Ministry will present their case first and then the client will have an opportunity to explain his or her reasons for the appeal”.

That really says enough, for the general direction and approach that is recommended!

 
 

E) WITHHELD MAB STATISTICS AND EXPENDITURE DATA

At least some statistical information used to be published on MAB hearings, the number of the appeals heard or reviews conducted, and the total costs they incurred for a financial year. It used to be included in Appendices for fees and expenses paid to members of statutory and other bodies serviced by the Ministry. These details used to be published with ‘Annual Reports’ that MSD used to publish until 2009/10. Since then the reporting on MABs has stopped! Annual Reports now rather focus on balance sheet type accounting data, presented by Audit New Zealand and the Ministry. In the last Annual Report that contained information on MAB hearings, there was a cost blow-out, which was “explained” with an increase of applications for the Child Disability Allowance, of which more were also declined, then leading to more appeals. This was supposed to have led to the increase in total appeals, but there appears to have been an increase of medical appeals in other areas also.

‘NZ Doctor’ magazine online wrote about this on 24 April 2013:
‘Medical Appeal Board costs treble then drop back’, by Lucy Ratcliffe:
http://www.nzdoctor.co.nz/in-print/2013/april-2013/24-april-2013/medical-appeal-board-costs-treble-then-drop-back.aspx

Search the Web (under the given title) per ‘Google’, ‘Bing’ or so, or see this other link to a PDF copy of that, in case the link above does not work::
NZ Doctor, MAB costs treble then drop back, article, L. Ratcliffe, 24.04.2013

Here are links to PDF copies of the earlier Annual Reports that still show the data:

https://www.msd.govt.nz/about-msd-and-our-work/publications-resources/corporate/annual-report/

Individual ones (still available on 20.09.16):
https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/corporate/annual-report/annual-report-2009-2010.pdf
(see page 120)
https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/corporate/annual-report/annual-report-2008-2009.pdf
(see pages 121-122)
https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/corporate/msd-annual-report-2007-08.pdf
(see page 132)
https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/corporate/annual-report-2006-2007-part-1.pdf
https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/corporate/annual-report-2006-2007-financials.pdf
https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/corporate/annual-report-2006-2007-appendices.pdf
(see page 129)
https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/corporate/annual-report-2005-2006.pdf
(see page 137)
https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/corporate/annual-report-2005-2006-1.pdf
https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/corporate/annual-report-2005-2006-2.pdf
(see page 137)

MSD, annual-report-2004-2005, MAB costs and cases, p. 172-173, d-load, 01.09.2012
(Most of these should be publicly available via the internet).

And the following link shows that the report 2010-11 does no longer include MAB data:
https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/corporate/annual-report/2011/annual-report-2010-11.pdf
https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/corporate/annual-report/2011/annual-report-2010-2011-erratum.pdf

So it appears that the Ministry has since 2011 intentionally withheld information on MAB hearings and their costs, which should be of major concern, as the reasons given, e.g. a change in financial reporting methods across the public service sector, appear a little unconvincing, to put it mildly.

In view of the above, it was perhaps a bit surprising, to get at least some one off information on MAB hearing numbers and outcomes by way of an OIA response from Deputy Chief Executive Debbie Power on 12 July 2013:
MSD, O.I.A. Request, DDs, MABs, training, ltr fr. D. Power, C.E., w. MAB table, anon., 12.07.13

With the minimal “transparency” we get from MSD on MAB hearings and outcomes, how can the public assess and form an opinion, on how “fair” hearings and decisions are, and how they do actually measure up to meet standards of “natural justice”?

 
 

F) MEDICAL APPEAL BOARD MEMBER PAYMENT

As it states under “Payment” at the bottom of page 14 in the “Info Pack”, the MAB members are paid by the Ministry of Social Development.

Although payments to Members hearing medical appeals by WINZ beneficiaries may vary due to time and other costs involved, and are apparently not publicly available, there is some reliable historic information available from a MAB hearing conducted in late October 2010. Invoiced were on 29 October 2010 by the Chairperson $ 2,234 for 3 hours preparation, 1 hour pre-meeting and hearing time, 0.83 hours “post meeting” activity and 4 hours for “report writing”. A total of 8.83 hours were invoiced! Another panel member attending the same hearing invoiced $ 1,460.50 for 3.75 hours at $ 195 per hour (plus GST), plus costs for 45 minutes at the hearing, 45 minutes for planning the report and discussing it, 45 minutes for editing and compiling the report. That member also invoiced for 100 km travel at $ 1.15 per km, being $ 115. A third panel member invoiced only $ 840 for unspecified activities. It appears that a base charge for 3.75 hours is paid, plus additional expenses. For the given example this gives a total of $ 4,534.50 for just one hearing, which admittedly involved a fair amount of documentation to be read and assessed.

It must be expected that payments will have increased since then, so medical practitioners and other health or rehabilitation professionals attending such Board meetings and to any related activities appear to be earning a good “pay” for their “services”.

By the way, here is some evidence of Dr Bratt’s efforts to seek an increase of fees paid to Designated Doctors, already in 2008:
MSD, Design. Dr. Fee Adjustment Proposal, Dr. D. Bratt, memo, copy, hi-lit, 19.11.2008

 
 

G) OTHER ASPECTS TO CONSIDER RE THE MAB AND THE LEGISLATION

Also important to consider in relation to the MAB, the legislation and processes they follow, is the fact that the Chief Executive of MSD has a huge, unreasonable amount of discretion to make decisions under provisions of the Social Security Act 1964. This degree of power is extremely worrying, as it is the Chief Executive who decides under the provisions of the Act, who should face certain obligations, and if they are not met, what sanctions will be imposed. It is also at the Chief Executive’s discretion to determine whether someone has the capacity to seek, undertake and be available to work! As we know now, this is no longer only determined based on information of a medical nature!

What this means, and how this is in conflict with modern day lawmaking, and with New Zealand’s basic principles for its legal and constitutional system, can be read in a very critical submission made by the ‘Legislation Advisory Committee’ on the Bill that led to the change of the Social Security Act in 2013.

Legislation Advisory Committee submission on the ‘Social Security (Benefit Categories and Work Focus) Amendment Bill 2012’, 01 Nov. 2012:
http://www.parliament.nz/en-nz/pb/sc/documents/evidence/50SCSS_EVI_00DBHOH_BILL11634_1_A298367/legislation-advisory-committee

http://www.parliament.nz/resource/en-nz/50SCSS_EVI_00DBHOH_BILL11634_1_A298367/d1ded83fdb6208368b4de86523053350b0d01ee3

 

Extracts:
“Understandable and accessible legislation”

9. As an amendment Bill to the Social Security Act 1964, this Bill does not create understandable and accessible legislation. The Social Security Act must be one of the most, if not the most, amended Act on New Zealand’s statute books. Since enactment the Act has been subject to amendment 131 times. Of the Act’s current 457 sections and 32 schedules, 174 sections and 14 schedule have been previously repealed. This Bill repeals 35 sections and one schedule. It introduces 54 new sections and 2 new schedules, and amends 51 current sections and 8 current schedules. As an example, one of the new sections will be called “60GAG”. Reading through both this Bill and the Social Security Act as it will be when amended require much skipping between different sections and parts in order to understand an issue. Some of the new sections and current sections amended to include further subsections will be very long. For instance section 77 of the Act will become 14 subsections long and subsection 82 will become 18 subsections long.”

10. All of this past and proposed amendment of the Social Security Act has left it in messy and confusing state. The Act is in need of a complete rewrite in order to create coherent, comprehensible, straightforward framework. Because of the nature of this type of legislation as a system of entitlements for New Zealanders in difficult, and potentially vulnerable, circumstances, there is even greater need for this legislation to be clear and accessible.”

“Basic principles of New Zealand’s legal and constitutional system”

13. The Bill raises a Rule of Law issue. In a number of instances, the Bill gives the Chief Executive of the Ministry of Social Development discretion about matters that affect an individual’s entitlement for social support. For example, cl9 introduces new s 11E, which gives the Chief Executive discretion to determine whether someone has the capacity to seek, undertake and be available to work. Cl 11 introduces new s 20B, under which the Chief Executive has the discretion to regard a child as being the child of a benefit applicant if the child’s parents are unwilling to support the child because of circumstances the Chief Executive considers exceptional. Sch 1 introduces new sch 3A, which gives the Chief Executive the discretion to disregard up to $20 per week of a beneficiary’s personal earnings to meet the cost of childcare.”

14. This approach is consistent with the Social Security Act in its present state as it does leave more than 50 decisions to the Chief Executive’s discretion, and to some extent this type of legislation does require the decision makers to have some flexibility in how they apply rules. However, the reliance on the discretion of a decision-maker is something that is being used less frequently in modern legislation. The principle that the law should be clear and should apply consistently to all is central to our legal and constitutional system. This legislation is about essential practical assistance affecting individual’s everyday lives. It should generally be possible to determine the criteria for entitlements by looking at the legislation, rather than relying on decision-making discretion on a case-by-case basis.”

“Appeal and review”

15. The Bill re-enacts (ie repeals and replaces with a new section) s 56A of the Social Security Act which establishes the right of appeal on medical grounds to a medical appeal board in sch 2, which inserts new section 10B. This right of appeal applies to certain types of decision related to sickness, injury, disability and capacity of sickness beneficiaries to work. There is no further right of appeal from decisions of the medical board and its decision bind the Chief Executive. The board comprises three members appointed by the Chief Executive who are medical or rehabilitation practitioners or persons with expertise in vocational training or support.”

16. This is a more limited and less independent right of appeal than applies to other decisions under the Social Security Act, which may be appealed to a benefits review committee and then to the Social Security Appeal Authority. A further appeal may be made to the High Court on questions of law.”

The Legislation Advisory Committee continued with other points of criticism in their submission on the above mentioned Bill, which upon passing by Parliament later amended the Social Security Act – with only minor changes being made to the draft Bill. The issues raised by the Committee appear to not have been addressed at all!

 
 

H) LACK OF MEDIA COVERAGE AND TRANSPARENCY OF MAB HEARINGS

It may be due to a lack of understanding of the perhaps too complex subject matter, the legal framework and medical aspects that are often involved or otherwise perhaps a total lack of interest in the fate of persons with sickness, injury and disability dependent on benefit support. In any case there appears to be extremely little reporting on what Medical Appeal Boards and their Members do, and what decisions they make.

At the same time we get damned little, virtually NO official information on outcomes of MAB hearings, as MSD’s Annual Reports no longer provide any basic, general data, and as other reports do simply not get created and published. Even Official Information Act (OIA) requests do often lead to no or only very limited information being made available, which does certainly not improve public perception of how MSD and how MABs deal with appeals.

And the only one article we found, that is somewhat “current”, and that delivers information on a case heard by a MAB, does present a more positive case and outcome, which though does not represent the rule, rather the exception. No wonder then, that the affected describe it like winning a lotto draw that MSD’s decision was overturned. That shows how abysmally appeals seem to generally be treated now, and it reinforces the need to call for substantial changes in the process we have. The changes made since 2012 do only make things harder for sick and disabled, and offer the Ministry yet more of an advantage, and this is certainly not acceptable, as it does not deliver fair justice, if it does offer justice at all!

 

Read this one media report, from the ‘Wairarapa Times Age’, by Cherie Taylor, from 15 August 2013:
http://www.nzherald.co.nz/wairarapa-times-age/news/article.cfm?c_id=1503414&objectid=11107582

Text Extract:

“Featherston ‘suicide’ pair win appeal”, by Cherie Taylor, 15 August 2013

“A severely-ill South Wairarapa couple who considered committing suicide fearing they wouldn’t survive once their benefit changed have won an appeal which will ensure their income isn’t cut. The couple, who featured in the Times-Age last month, and want to only be identified as Marie and Anthony, were told by Work and Income under the new welfare system Marie would be transferred from the invalid’s benefit to a benefit which required her to work a minimum of 15 hours a week.

She had been on ACC after severely injuring herself while working at a mill about 19 years ago. During the overhaul of ACC she was moved on to the invalid’s benefit. She is unable to walk or stand for long periods and experiences pain daily, requiring medication, including sleeping pills along with drugs for anxiety. Anthony has emphysema and is also unable to work.

With the changes, the pair said they were concerned they would lose about $100 weekly which would place them under severe financial hardship so contacted the Wairarapa Advocate Service for help and applied for a review of decision, which they originally lost.
Applying for a medical appeal their case was heard by three Medical Appeal Board members, Ian St George, Kathleen Williams and Kathy Stone, who overturned the ministry’s decision. In the decisions the board states Marie had tried to work in paid employment but had to stop because of exacerbations of her pain and specialists could do nothing to relieve her daily pain. The board said Marie was permanently disabled from the work accident and incapable of working 15 or more hours weekly and overturned the original decision to move her on to a job seeker benefit.

Marie told the Times-Age the final decision was a relief.

It’s like winning Lotto only without the money. It’s really taken the stress off us both. They have no idea how much pain I was because of the stress … at least it’s over now.”
The three reviewers saw her on a better day but realised her anguish, she said. “They saw me on a good day but I think they saw my true colours … We can carry on with life now without the worry of how we will cope. Life can carry on as normal now we don’t have that hanging over us.”

However, she said she couldn’t have done it without the help and support of Wairarapa Advocate Service advocate Trevor MacKiewicz and encouraged people unsure about their entitlements to contact him. “Don’t give up. Find an advocate and keep battling. We are so humbled by Trevor’s support. He guided us.”

Mr MacKiewicz said the service’s client list had more than doubled from 100 to 250 since the couple’s story was highlighted. “People are struggling and they are worried about the changes and their obligations especially around drug testing. There are people on medications who think they won’t pass the drug test,” he said.

Meanwhile, he said he was pleased to get a successful result for Marie and Anthony.
“She can relax now and not worry about being pressured to go to work when she can’t work. She’d rather be working but she can’t.”

But, he said, Work and Income needs to look at the review system and provide adjudicators with all the information to avoid the expense and trauma of appealing decisions. “How can they make a fair decision if they haven’t got all the information laid out in front of them? Work and Income had all the medical information but didn’t provide it to the reviewer. This needs to change.”

If you need help Mr MacKiewicz or an advocate can be contacted by calling (06) 377-2525.
– Wairarapa Times-Age

 
 

I) SUMMARY COMMENTS AND CONCLUSION

We can summarise the questionable particular changes to, and also the continued, unchanged practices that form part of the MAB process and that can only be seen as being totally unfair and unreasonable, if not illegal:

1. The MAB has been and is still being appointed by the Ministry of Social Development through their ‘Appeals Coordinator’, which is a practice that raises serious issues with the proper application of natural justice. To have a truly independent hearing panel and hearing process, this practice must be stopped, and a separate, independent appointment board should be established, that appoints such Members for MAB hearings. Indeed it should be overdue to establish a totally different hearing process, where appeals would be heard by a truly independently appointed Tribunal.

2. The present legal provisions in the Social Security Act 1964 continue to not offer any further rights of appeal from decisions made by a MAB. This is not in line with handling of other decisions made under the Act, where cases can go to Tribunal and even to the courts. A MAB decision is final, and only the very restricted right to apply for a judicial review is available only on questions of law, that may come with a MAB decision that’s been made. Hence a solution to this would be to abolish the present MAB hearing system, and instead establish an independently appointed Tribunal hearing such cases, where medical and also legal experts hear cases, that may also leave the option to further appeal hearings before a court.

3. The introduction of a proper, further internal review of original decisions by the ‘Appeals Coordinator’ is a welcome improvement to the past hearing process, as this makes it possible for dealing with not earlier detected flaws and mistakes in such MSD decisions before a proper appeal hearing may need to be set up and conducted. Questions remain though how “neutral” and “independent” such an internal reviewer in the form of the ‘Coordinator’ can be, given the position is one within the Ministry itself.

4. The introduction of a “Ministry presenter” may appear justified under natural justice principles, as it allows the Ministry “to be heard” before a MAB hearing panel. But in effect, this new part of the process does actually create a further imbalance that significantly favours the Ministry and their position. The MAB Members are already appointed by the Chief Executive of MSD (through the ‘Coordinator’), the MAB Members are trained and guided by MSD, they get paid by MSD, and they apply rules and law governed by legislation and policy for/of MSD. This already gives MSD too much influence on the whole hearing process as it was and still is. There appeared to be no significant issues with the hearings as they used to be conducted without the use of such a “presenter” in the past. Now the Ministry has this professional, inside expert to their avail to present and defend their case and the made decision, while the appellant will usually be a total layperson, unfamiliar with much policy and with little legal knowledge. As a sick and disabled person the client does usually not have the means to afford expert advice and representation. The “presenter” is indeed an unacceptable new player, and this practice to involve such should be stopped. It is of additional worry that according to information on page 27 of the new “guide” in use for MAB Members that “presenter” may not only be a case manager, but even a Service Centre Manager.

5. The ‘Report for the Medical Appeals Board’ raises questions about its quality and it being “neutral”, as it is prepared by the ‘Coordinator’, appears to allow the Ministry to present more information and more arguments to defend their decision, than the appellant and WINZ client. It does in the present form give the Ministry a head start in the proceedings, as it appears to be covered at the start of hearings, allowing the “Ministry presenter” to present and comment on it. This puts the appellant in a “defensive”, disadvantageous situation, which is not sufficiently in line with the fairness approach that should be applied, and is thus unacceptable. The Report needs to be revisited and changed to present relevant details more equally. As the appellant will usually be a sick, disabled layperson, she/he will even with the help of a support person struggle to present an equally well argued case, even if further submissions may be allowed.

6. The practice to also enable the Ministry to bring in their legal representative, usually an expert hired by Crown Law, when the client and appellant should bring in a solicitor, may appear justified, and strictly speaking must be allowed. But as the whole process is already significantly favouring the Ministry and the “presenter”, this will only add to this clear imbalance before a MAB hearing. It is insulting to inform a client and appellant to seek “legal advice” from the under-resourced, not always easily accessible and available “advisors” working for Community Law Centres and the Citizen Advice Bureaux. The advisors there only offer rather general legal advice and offer no equal quality and expert advice as Crown Law solicitors have, who often are hard to find experts on social security legislation. The appellant is with the recommended handling of legal representations also severely disadvantaged.

7. It is unacceptable to refuse appellants to make their own audio or video recordings of MAB hearings, in light of the fact that the Ministry seems to insist that their “Fraud Unit” equipment is used, should a MAB allow any recording of proceedings. In any case, where one party is allowed to use the equipment they offer to make recordings, the same right should be given to the other party, i.e. the appellant. Also it should be made clear to MAB Members hearing cases, that it is more appropriate to allow recordings, as this ensures transparency and a greater likelihood of fairness and reasonableness being applied in hearings and in making decisions. Denying recordings risks being seen as attempting to deny transparency and fairness.

8. The practice must be stopped to allow “Designated Doctors” and certain other health and rehabilitation professionals to sit and hear MAB appeals, if they have been consulted with, have in many cases been selected, endorsed and approved for the purpose of delivering services to the Ministry in the form of “second opinions” and work ability assessment services. The apparent practice of allowing “Advisors” and “Coordinators” employed by MSD to have any role whatsoever in helping “identify” and “recruit” such professionals, who mostly are general practitioners, and to even train and “mentor” them, raises questions as to the true independence and objectivity of such health professionals. Only medical practitioners and rehabilitation professionals that do otherwise NOT offer any services to the Ministry should be allowed to be Members on MAB panels. Designated Doctors and/or Work Ability Assessors contracted by MSD must generally not be allowed to hear appeals.

 

And here is one other matter that deserves to be seriously considered by all persons who may face a MAB hearing. Representation may be hard to get for most on benefits, but without any support, be this at least from an experienced advocate with sufficient knowledge and experience, or better even with professional legal representation, you may be left in a situation where your chances may be limited and low to succeed with an appeal. The importance of beneficiaries having representation is also highlighted and discussed in a report published by ‘Community Law’, called ACCESS TO JUSTICE, from October 2014:

“A COMMUNITY LAW CANTERBURY ACCESS TO JUSTICE RESEARCH PROJECT”
http://www.bas.org.nz/wp-content/uploads/2015/03/Access-to-Justice-online-edition-11-Dec.pdf

That link is provided by the ‘Beneficiary Advisory Service’: http://www.bas.org.nz/?p=526

 

 

This post has been prepared and published by

 

‘Quest for Justice’

 

Auckland, New Zealand

 

first published: 18 March 2015

updated on: 20 Sept. 2016

 

Here is a PDF copy of this post, but please be aware that some links and attachments are only accessible in the original post above:

mab-process-how-msd-discretely-changed-it-further-disadvantaging-clients-nzsjb-updated-20-09-16

 

P.S.:
As there are further changes due to be made to the social security legislation, presently before Parliament in the form of the ‘Social Security Legislation Rewrite Bill’, we can expect that the Social Security Act 1964 will be rewritten and re-enacted soon. But as most provisions will only be “rewritten”, the sections and some wording re Medical Appeal Boards and hearings before them may change, not the way the law and processes will be applied!

 
 

ADDENDUM – 22 MARCH 2015:

Further to the above, there is some more new information that has just surfaced and which is of relevance to some information contained in this post, where “Designated Doctors” are mentioned. As we know WINZ use these medical practitioners for getting “second opinions” on their clients’ health conditions and ability to work. The post mentions that Designated Doctors also sit on the Medical Appeals Board, hearing appeals against decisions WINZ case managers usually make – based on the very Designated Doctor “recommendations”.

As the post here has high-lighted, there seems to be little true “independence” of these Medical Appeal Boards.

Here is another presentation by Dr David Bratt, the MSD and WINZ Principal Health Advisor, that has surfaced:
http://www.gpcme.co.nz/pdf/2014%20South/Fri_room6_1400%20Bratt%20Designated%20Doctor%20Training.pdf

 

It reveals how Dr Bratt works with his Designated Doctors, who he “trains”, “mentors” and liaises with – partly directly, partly through his Regional Health Advisors and Regional Disability Advisors that are stationed in each Regional Office of MSD and WINZ. MSD also use the Health and Disability Coordinators to work and liaise with health care providers and of course medical practitioners, some of which will turn out to be Designated Doctors. Indeed they seem to be involved in finding “suitable” ones to “serve” for WINZ and MSD.

So we can clearly see how the UK approach is gradually being phased in here. See how Dr Bratt warns his Designated Doctors to be careful with wording their reports to WINZ (page 20), and how he seems to take a particular interest in cases where a client may “dare” to make a complaint about a Designated Doctor to the Health and Disability Commissioner (page 23)!!! MSD and Dr Bratt are of course aware that clients can access certain information and that this can create awkward situations for those involved in examining and assessing clients. Hence they will use smart methods to report details in words that will minimise the risk of legal challenges. They know now that some sensitive information has been revealed and is in circulation, that they never wanted to come out.

 
 

ADDENDUM – 19 April 2015:

In a recent publication Frances Joychild QC wrote about the problems WINZ beneficiaries, and poor persons generally, have in getting access to justice. She also mentioned a case of a client of hers who appears to have been heard by a Medical Appeals Board and who got a decision that was so appalling, it led to an application for a judicial review. Frances Joychild is one of few experts in social security legislation and the law in that area, so her expressed concerns about how poorly beneficiaries are served when it comes to legal representation and justice should be taken very seriously. Here is a link to the ‘Evening Report’ publication from 24 March 2015:

Frances Joychild QC on the fading star of the Rule of Law

 

Extracts:
“Some of the most disturbing and alarming cases I have dealt with recently come from citizen’s dealings with departments of state. The most vulnerable group in New Zealand, and the most stigmatised, are without a doubt income tested beneficiaries. There are increasingly large discretions held by WINZ officials largely without legal overview by independent lawyers. The rule of law fades in such situations, even despite the best meaning and well intentioned officials.

I have heard regular complaints of benefits being randomly cut off, without notice. And it taking weeks or even months and numerous phone calls or visits to WINZ offices to get them reinstated.”

“Staff have so many discretions over beneficiary entitlements and beneficiaries are so dependent on their benefit to meet their most basic needs that the vast majority are too afraid to rock the boat. For several years now persons have been unceremoniously and unlawfully removed in droves from sickness and invalids benefits and subject to punitive job search conditions for which many are not equipped mentally or physically. I am aware of some who have ended up off benefit entirely. Their only recourse is to a Medical Appeal Board (MAB) panel and then to judicial review. They cannot access the Social Security Appeal Authority.

Certainly the rules of natural justice appeared completely foreign to the MAB panel I sought to review judicially.
Likewise the assessing GP’s appeared to be acting as an arm of WINZ rather than an independent health professional.

But my proceeding never reached the courts. It was made impossible not to settle. One could sense the Ministry concern that a test case challenging the practices surrounding removal from benefit had to be avoided if at all possible.

Clearly beneficiaries have no money to employ a lawyer. Most of the problems they encounter are not covered by legal aid. Some are lucky enough to have access to unpaid beneficiary advocates. I suspect a very large number do not. It is extraordinary that in an area of major legal complexity, wide government discretions and deeply disempowered citizens that the Rule of Law is at its weakest.”

Read the whole commentary or report on the ‘Evening Post’ website.

 

1 Comment

THE DISCREDITED, INDEFENSIBLE WORK CAPABILITY ASSESSMENT (WCA) IN THE UK, AND WHAT ITS DEMISE MUST MEAN FOR NZ WELFARE REFORMS, PART 2


THE DISCREDITED, INDEFENSIBLE WORK CAPABILITY ASSESSMENT (WCA), RESPONSIBLE FOR ENDLESS HARASSMENT OF SICK AND DISABLED IN THE UK, AND WHAT ITS DEMISE MUST MEAN FOR NZ WELFARE REFORMS

 
 

Contents:

A). INTRODUCTION – THE WORK CAPABILITY ASSESSMENT (WCA)
B). THE WORK CAPABILITY ASSESSMENT HANDBOOK FOR HCPs
C). THE ASSESSMENT PROVIDER ATOS AND THE NEW PROVIDER MAXIMUS
D). INTERPRETATION OF ‘DECISION MAKER’ AT DWP
E) THE 5TH AND FINAL REVIEW OF THE WORK CAPABILITY ASSESSMENT
F). CONCLUSIONS AND COMMENTS ON THE ‘INDEPENDENT REVIEW OF THE WCA – YEAR FIVE’, AND THE ONES BEFORE
G). DR LITCHFIELD’S SUPERFICIAL IMPRESSION OF NEW ZEALAND’S WORK CAPABILITY ASSESSMENTS AND WELFARE REFORMS, AS REFERRED TO IN HIS FINAL ‘INDEPENDENT REVIEW’ OF THE WCA
H). THE WCA REVIEWER DR LITCHFIELD AND HIS LINKS TO ‘FIT FOR WORK’
I). OTHER INFORMATION ABOUT DR LITCHFIELD, HIS BACKGROUND AND WORK
J). CRITICISM OF THE WCA FROM THE UK MEDICAL PROFESSION
K). INFORMATION ABOUT THE WCA, CRITICISM OF IT AND THE DWP – BY SUPPORT GROUPS, A TRIBUNAL UNIT AND THE MEDIA
L). THE MAN AND MIND BEHIND THE ‘ALL WORK TEST’, THE ‘PERSONAL CAPABILITY ASSESSMENT’ – AND CONTRIBUTOR TO THE ‘WCA’
M). AYLWARD, WADDELL ET AL, ALL WORKING ON THE SAME AGENDA
N). FORMS OF WORK CAPABILITY ASSESSMENTS IN USE IN NEW ZEALAND
O). THE CONCLUSIONS THAT NEW ZEALANDERS SHOULD DRAW FROM THE DISASTROUS WELFARE REFORMS IN THE UK, WHERE THE FLAWED AND HARSH APPROACHES HAVE NOT DELIVERED, AND WHERE THE WCA IS NOW DISCREDITED
P). APPENDIX

 

 

H). THE WCA REVIEWER DR LITCHFIELD AND HIS LINKS TO ‘FIT FOR WORK’

 

Some light deserves to be shed onto the Reviewer Dr Litchfield himself, given his involvement with ‘Fit For Work’, his work in other capacities, and also his long term position with BT, a large UK employer. It deserves some questioning, why a Reviewer from his kind of background was the supposed “appropriate” appointment. The former Reviewer appeared to come from a slightly more independent kind of professional background, some will think.

Dr Paul Litchfield has been Chief Medical Officer for BT (British Telecom) and he is a member of ‘Fit For Work’, a “think tank” kind of “stake holder group” and lobby organisation:

Re the author or “Reviewer”, look up info via these websites:
https://uk.linkedin.com/pub/paul-litchfield/44/37b/104
http://www.fitforworkeurope.eu/UK/About/paul-litchfield.htm

from LinkedIn:

“Summary”

“Paul’s main professional interest for the past decade has been occupational mental health and he has been involved in UK national and European initiatives to improve rehabilitation back into work after mental illness and to reduce the stigma of mental ill health. Within BT he has created a framework for health, safety and wellbeing that has driven very significant improvements to the benefit of both the workforce and the business and the company’s performance in these areas is widely viewed as exemplary. Key elements of the approach have been partnership with the Trade Unions and the transformation of data into management information that is of use in managing the company better. He has published and lectured widely not only on mental health issues but also on sickness absence, hazard control and ethics in occupational health.”

He has been ‘Chief Medical Officer’ for BT Group plc (British Telecom) for 14 years, and is thus a medical professional with a corporate business appointment and links.

‘Fit for Work UK Coalition’ website:
http://www.fitforworkuk.org/

‘Fit for Work Europe’ is made up of only 5 partner countries, being the UK, Netherlands, Switzerland, Hungary and Turkey.
http://www.fitforworkeurope.eu/About/our-history.htm

Under the page ‘Our History’ of ‘Fit for Work Europe’ we find that ‘Fit for Work’ was originally established in the UK, and “expanded” into Europe.

Their website informs:
Fit for Work Europe is a multi-stakeholder Coalition, driving policy and practice change across the work and health agendas. We aim to deliver more investment in sustainable healthcare by promoting and implementing early intervention practices. Research shows this approach is the most effective way of ensuring people with MSDs (musculoskeletal disorders) can enter and remain in work across the EU and globally.”

Also is some info available on Professor Stephen Bevan, their Founding Director
Professor Stephen Bevan, Founding Director
http://www.fitforworkeurope.eu/About/stephen-bevan.htm

“Stephen is Director of the Centre for Workforce Effectiveness at The Work Foundation and an Honorary Professor at Lancaster University. He joined The Work Foundation in 2002 as Director of Research from the Institute for Employment Studies (IES). In 2007, he founded the Fit for Work project and in 2009 he launched the European Coalition.

Stephen has carried out research and policy work for the Number 10 Policy Unit, HM Treasury, the Cabinet Office, the Department of Health, the Department for Work and Pensions and the European Commission. He has also advised many blue-chip companies on aspects of HR strategy and practice. Stephen has conducted research on high-performance work practices, employee reward strategy, staff engagement and retention.”

A UK report from 2007 is quoted, supported by a “grant” from ‘Abbott’:
‘Fit for Work? Musculoskeletal Disorders and Labour Market Participation’
http://www.fitforworkeurope.eu/Downloads/Website-Documents/44_fit_for_work_small.pdf

Stephen Bevan, founder of ‘Fit for Work’, was co-author of that report. The “Foreword” was presented by Professor Dame Carol Black, the UK Government’s then ‘National Director for Health and Work’, who is known to have based a lot of her own views on the “research” and “findings” by Professor Mansel Aylward and others at the ‘Centre for Psychosocial and Disability Research’ (once “sponsored’ by ‘UnumProvident’).

The report starts with the ‘Executive Summary’ stating a perceived challenge:

The health of British workers is giving us serious cause for concern. Up to a quarter of the workforce is not healthy enough to drive the improvements in productivity which the UK needs to thrive in an increasingly globalised, knowledge-based economy. Despite record levels of employment and job growth, over 2.6 million people of working age are claiming Incapacity Benefit (DWP, 2007). There is overwhelming evidence that worklessness is, itself, bad for health and that rehabilitation back into work can positively affect physical health, psychological well-being and raise people out of poverty.”

While lamenting the poor health, sickness absence and lack of productivity of UK workers, the report does on page 11 (under ‘Introduction’, 3rd section) bluntly admit the following:

“But, as ever, the truth about the health and well-being of the UK working population is a little more complex than the headlines imply and, although the overall rate of sickness absence has stayed at about the same level for the last thirty years or so, we have witnessed some very significant – and concerning – changes in the nature and composition of work-related incapacity during this period.”

On page 12 that report then comes to the crucial issue it tries to address:
“Despite the stability in the headline rate of sickness absence, we have witnessed a significant increase in the proportion of the total made up of longer-term absences: workers with more serious illnesses or chronic conditions. By some margin, the majority of these longer-term absences can be attributed to two ‘clusters’ of conditions. The first is what is now popularly known as ‘stress’, though should more accurately be termed ‘common mental health problems’. These include depression, anxiety disorders and a number of other conditions. The second, known as musculoskeletal disorders, are the subject of this report. ‘Stress’ grabs the headlines because, each year, work-related ‘stress’ results in the loss of over 10 million working days, at a cost to UK employers of in excess of £3.7 billion (Lehki et al, forthcoming).”

Own Comment:

These are the same kinds of “issues” Aylward, Waddell, Burton et al have repeatedly been stressing in their reports. They mostly conducted “comparative studies” on paper, and interviews with selected groups of affected. Comparing statistical and other medical and even economic reports on “worklessness” and benefit dependence, may reveal some form of association and apparent correlation between “conditions”. But it does not necessarily give a clear cause and effect explanation; like that unemployment itself causes illness and incapacity. We know from experience that ill health, serious and permanent disease and forms of physical and mental incapacity causes unemployment, but the latter may only cause ill health in some cases. What nobody appears to have considered is, that the usually resulting POVERTY that comes with unemployment and long term benefit dependence, may actually be the real cause for further mental and physical illness – not just unemployment itself.

On page 16 of that report it is revealed how the “research” was conducted for the publication:

 

Extract:
“In addressing the objectives outlined above, we have used the following methods:
Desk Research:
Here we have drawn on existing published research from the medical, occupational health and health economics literature. This has enabled us to draw together the evidence on the nature, extent, impact and costs of MSDs to the economy, to employers and to individuals. We have examined a range of MSDs to assess the extent to which their impact varies and where policy and practice has been both strong and weak in terms of prevention and intervention.

Expert Interviews:
We have conducted interviews with experts (see Appendix 1 and 2) across a number of disciplines to identify the main areas of policy and practice which need to be addressed by policy-makers, health professionals and by employers.”


Own Comment:

That is the way much of the research by Professor Aylward was also conducted, by researching other reports, analysing selected data, and writing new reports. What has been shown through reading their reports is, that there is a tendency to “trivialise” certain health conditions or illnesses, such as a fair few mental health conditions that are also included in the DSM, by simply calling them “common mental health problems”. The same is done in this report, also with MSD, simply referring to it as one of “musculoskeletal disorders”. These “experts” are actually attempting to blur the line between more severe conditions, and those that appear to be less severe. Aylward and others admitted in later reports, that this whole area of disability and “worklessness” requires further research and study, as existing reports do not offer sufficient information to draw well based conclusions.

Hence perhaps their cautionary “note on definition” on page 17:
In the absence of a consensus on a clinical definition of many MSDs, navigating the literature on their prevalence, incidence, diagnoses, epidemiology, treatment and cost to society is a difficult task. The lack of standardisation and validation of the terminology and classification of MSDs is one of the reasons for the contradictory findings in the literature regarding the diagnosis, epidemiology, treatment and rehabilitation of these conditions (WHO, 2003).“

While the contents of the report may not be fully discredited, the above comments do at least indicate, that it should be treated with a lot of caution, in regards to its value and reliability. What appears clear is that MSD can be caused by work, and can become worse if unhealthy work is continued. I note that the medical researchers Waddell and Burton are repeatedly quoted in this report. Like with Professor Mansel Aylward, the two are known to have done a lot of “comparative studies”, in the form of comparing statistical data contained in various other reports. These may show some “correlations” between sickness and disability, and work absence with longer term incapacity and benefit dependence. But that alone does not necessarily mean that sickness and disability are the result of not working, it is more likely to be the other way around. Also is there not sufficient evidence to generally claim that work in ordinary paid jobs on the competitive market is “beneficial” to health. Much work has certain detrimental effects on physical and mental well-being, and instead the emphasis should perhaps rather be to promote some moderate physical and mental activity, where possible, as that may be beneficial. This does though not equate to activity in competitive, paid work.

Under ‘Interventions’ on page 36 the “biopsychosocial model” and “work” are brought into the report:

“The biopsychosocial model is an explanatory framework that recognises the importance of psychological and social factors in determining how MSD sufferers cope with their conditions. The following section provides a brief overview of the biopsychosocial model and outlines the implications that it has for the workforce.”

“The biopsychosocial model advocates that clinicians, occupational health professionals and others should assess the interplay between the biological (eg disease, joint damage), the psychological (eg disposition, anxiety) and the social (eg work demands, family support). Figure 3 below illustrates the role which psychological disposition and behaviour can have on the way a physical ‘injury’ (such as back pain) is approached by a patient. In this example, the injured patient risks entering a self-reinforcing cycle of incapacity,
delayed recovery and even depression if their dominant response to pain is to ‘catastrophise’ it.“

Under chapter 5 ‘The wider Impact of MSDs’ the report stresses the costs caused by MSD, by illness generally, particularly through workplace absence, leading to lost productivity. A range of conclusions and recommendations are presented under chapter 6, at the end of the report, which are aimed at reducing the harm and costs caused by MSD, and which could improve workers’ productivity. The underlying message to employers, employees and government is: Focus on capacity, not incapacity. Also the claim is, while MSD affects the ability of some to work, it is work that is generally good for a person’s long term health. Even when unwell or injured, remaining at work in some capacity is better for “recovery” than being absent from work. While some recommendations may represent common sense approaches, others seem rather questionable, like telling employers to challenge GP’s diagnosis, assessment and “sick notes”, same as to avoid a “risk management” mentality when dealing with a sick employee. Many GPs will feel challenged with applying a “biopsychosocial” approach, which involves potentially complex interrelationships and interactions, and can be ambiguous or misleading.

 

Appendix 1 lists expert witnesses that were interviewed, and amongst others, there was clearly a rather prominent representation by DWP, their favoured “experts” and also the UNUM insurance corporation:

Dame Carol Black – ‘The Government’s National Director for Health and Work
Dr Bill Gunnyeon – ‘Chief Medical Advisor’ ‘Department for Work and Pensions
Dr Mike O’Donnell – ‘Chief Medical Officer’ ‘UNUM Provident
Prof. Gordon Waddell – “orthopaedic surgeon with clinical and academic interests in the field of back pain and related disorders”, but who also (once) worked at the ‘Centre for Psychosocial and Disability Research’ (formerly “sponsored” by UNUM), headed by M. Aylward
Dr Nerys Williams – ‘Medical Policy Advisor’, ‘Department for Work and Pensions

Hence we have a strong line-up of “experts” that come from vested interest parties, who have also a name for their strong position on the “health benefits of work”.

But with the further above stated fact that sickness absence in the UK has remained rather steady for over 3 decades, what then is the justification and purpose for the position presented with this report? It appears that the main goal is to create a “healthier” Britain, where more people work longer, and produce more, and where attempts are made, to even engage sick and disabled into work, so that socio-economic costs are reduced, simply to be better able to compete with work forces of other nations. The agenda behind “Fit For Work” is therefore rather a politically and ideologically driven one, it seems, where a step change is asked for to be applied by the medical profession, employers and also government.

Interpretation: MSD’ stands for ‘Musculoskeletal Disorder(s)’

Dr Litchfield already being somewhat biased towards a “fit for work” approach

The very involvement of Dr Litchfield with “Fit For Work” appears to show at least a “slight” conflict of interest, which he has, as the Reviewer of the WCA. He is with his membership in that organisation already taking a position that supports the underlying approaches and policies that are reflected in the WCA and the “policy intent” behind it. The report shown above shows the strong influence that leading “experts” had on “Fit For Work” and research they rely on, and it resembles a lot the same messages we have over the years heard coming from the likes of Professor Mansel Aylward, former Chief Medical Advisor to the DWP. Also has Dr Litchfield, or have “Fit For Work”, cooperated with the DWP, and allowed input from vested interest parties such as UNUM. One would have thought that a Reviewer of the WCA would be more suited if coming from a more neutral kind of background.

 

 

I). OTHER INFORMATION ABOUT DR LITCHFIELD, HIS BACKGROUND AND WORK

 

the void’ reports on the Reviewer, Dr Litchfield, under this link (27 Feb. 2013):
https://johnnyvoid.wordpress.com/tag/dr-paul-litchfield/

Member of ‘Fit For Work Coalition’ Brought in to Scrutinise Atos

Extract:

“The DWP have brought in a member of the ‘Fit For Work Coalition’ and the neo-liberal think tank the World Economic Forum, to carry out a review of the brutal assessments for sickness and disability benefits.

Dr Paul Litchfield will replace Professor Malcolm Harrington who was sidelined after being mildly critical of the Work Capability Assessment (WCA), the relentless health and disability tests which have driven some claimants to suicide.”

‘dns Disability News Service’ reported on Dr Litchfield’s appointment (13 Dec. 2013):

‘Fitness for work’ test: government ‘should start again from scratch’

http://disabilitynewsservice.com/2013/12/fitness-for-work-test-government-should-start-again-from-scratch/

“Disability charities appear to be losing patience with efforts to reform the much-criticised “fitness for work” test, as the government’s new independent reviewer delivered his first report.”

The ME Association reported on Dr Litchfield’s Independent Review of the WCA:
“We report on the fifth and final Independent Review of the Work Capability Assessment 28 November 2014”

http://www.meassociation.org.uk/2014/11/we-report-on-the-fifth-and-final-independent-review-of-the-work-capability-assessment-28-november-2014/

“Dr Charles Shepherd reports on a meeting at the DWP on Thursday November 27 at which Dr Paul Litchfield gave a presentation on the fifth and final independent review of the Work Capability Assessment (WCA).”

Extracts:

‘ESA outcomes of WCA: Quarterly official statistics’

“I would also draw attention to the latest quarterly statistics on ESA produced by the DWP:
http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/352885/esa_wca_summary_Sep14_final.pdf

In particular, the most striking change that has been taking place between 2008 and 2013 (provisional figures) is in the numbers of people being found:

FIT FOR WORK: 2008 = 64%; 2013 = 27%
UNFIT FOR WORK AND PLACED IN THE WRAG: 2008 = 24%; 2013 = 15%
UNFIT FOR WORK AND PLACED IN THE SUPPORT GROUP: 2008 =12%; 2013 = 58%

So there has clearly been some effect as a result of the changes that have been made and the work that both Dr Litchfield and the Fluctuating Conditions Group and Mental Health Groups have been doing – especially the emphasis on the need for claimants to be able to do descriptor tasks reliably, repeatedly, safely and in a timely manner. Anecdotal feedback to The MEA also indicates that there ARE more people being placed in the support group and that less people are having to go to appeal.

But many people with ME/CFS, who have a genuine claim to this benefit, are still having to go to appeal in order to obtain ESA.”

 

 

J). CRITICISM OF THE WCA FROM THE UK MEDICAL PROFESSION

Over the years there has also been increasing criticism of the Work Capability Assessment by senior and also less senior members and spokespersons from the British medical profession. It was also the British Medical Association that spoke out clearly against the WCA and how it is being applied and thus causes serious harm to many of the sickest, the disabled and the weakest in society. In the following I present various critical to condemning reports and statements from various stake holders, also quoting professionals in the medical field:

1. The British Medical Association states this about the WCA:

http://bma.org.uk/working-for-change/negotiating-for-the-profession/bma-general-practitioners-committee/priorities/work-capability-assessment

Extract from a publication on their website:

“The Work Capability Assessment”

Background
The Work Capability Assessment (WCA) is the method used to judge whether claimants are eligible for the Employment and Support Allowance.

The system, first introduced in 2008, is currently administered by ATOS healthcare. As part of the assessment, ATOS will sometimes request a factual report from a claimant’s GP based on the information contained within the claimant’s patient medical report.

It is not part of the GP’s role to provide any opinion or recommendation on the patient’s capability to work as part of this process.”

BMA position
The BMA has for some time raised concerns about the WCA. We believe that the current process is insufficiently rigorous and consistent, and could cause avoidable harm to some of the weakest and most vulnerable members in our society.”

The BMA has called for urgent reform to the WCA based on specific concerns about the system:

● The computer-based process used to assess claims makes it very difficult for health professionals carrying out the assessments to exercise their professional judgement effectively. We strongly believe the computer system is in need of urgent reform.
● The fact that initial decisions are overturned in almost 40 per cent of appeal cases reinforces these concerns. It means that large numbers of claimants are denied the full level of benefit that they are entitled to until their appeal is heard and a fresh decision is made, leaving many in an intolerable position.
That there has been a lack of progress in implementing the recommendation of the Harrington Report that decision makers should actively consider obtaining further documentary evidence in every case before reaching a final decision. If the recommendation is implemented appropriately, with GPs providing factual information, it should result in better-informed decisions being made about eligibility for ESA by DWP decision makers, earlier in the process. As well as making the system fairer for claimants, this should also significantly reduce the administrative cost of dealing with so many appeals.”

The following link provides a MS Word document containing a BMA briefing on the WCA to the UK Parliament (from January 2013):
bma.org.uk/-/media/files/word%20files/working%20for%20change/negotiating%20for%20the%20profession/wcabriefing.docx

2. My Fibromyalgia published this on their website (fr. 23 May 2012):
http://www.myfibromyalgia.co.uk/2012/local-conference-of-the-british-medical-association-votes-against-atos-the-wca/

‘Local conference of the British Medical Association votes against ATOS + the WCA’

3. The Royal College of Psychiatrists publishes this on the WCA:
“The Work Capability Assessment and people with mental health problems: the case for better use of medical evidence”

http://www.rcpsych.ac.uk/policyandparliamentary/welfarereform/workcapabilityassessment.aspx

A joint statement the College published with other agencies:
http://www.rcpsych.ac.uk/pdf/WCA%20Medical%20Evidence%20joint%20briefing%20April%202012%20V%20FINAL.pdf

4. ‘Benefit Claimants Fight Back’ published a letter by various stakeholders, support groups and also leading doctors, incl. the BMA (27.09.2011), see this link:
https://benefitclaimantsfightback.wordpress.com/open-letter-on-atos-healthcare-to-the-bmj-and-rcn/

Extract:

“Open Letter on Atos ‘Healthcare’ to the BMJ and RCN”

“27 September 2011”

“Dr Michael ChamberlainChairman, BMJ (British Medical Journal) Group Board
Andrea Spyropoulos, President,Royal College of Nursing”

“Dear Dr Chamberlain and Andrea Spyropoulos”,

Re: Atos Healthcare and parent company Atos Origin
“As sick and disabled people, carers and other concerned people, including professionals, we are writing to you to urge the Royal College of Nursing and BMJ Group to immediately end your relationship with Atos, including stopping any advertising of Atos jobs or Atos the company on your websites, and not having Atos at the RCN Bulletin Jobs Fair 13-14 September, or the BMJ recruitment fair 30 September to 1 October 2011 in London.

As you know, Atos currently has a £100m a year contract with the Department for Work and Pensions (DWP) to carry out examinations for disability benefits.

We are outraged that Atos is profiting from denying those of us who are sick or disabled, the benefits we need to survive and maintain our level of health. In May, at the protest outside Atos headquarters, a number of people spoke about our experiences of the examination, being denied benefit and having to appeal to get it back. One woman testified that her brother, who had severe depression, committed suicide after being cut off. See:

http://www.guardian.co.uk/society/video/2011/may/11/disability-protest-atos-origin-video

The media have exposed more of the dire consequences of Atos’ decisions. In February, the Daily Mirror highlighted the case of a Derbyshire man with a heart condition, found fit for work, who had to go through tribunal to appeal, then was awarded Employment and Support Allowance (ESA) but died of a heart attack the day before his next Atos exam was due.

A Channel 4 News report on 27 July 2011 acknowledged what thousands have been saying: it interviewed the heartbroken partner of a critically ill man whom Atos denied his entitlement on grounds that he was ‘fit for work’ – he died less than three months later. How many more people have died following such cruel and callous treatment? The coverage was prompted by a Parliamentary report from the Work and Pensions Committee of MPs, in which they criticised Atos. Atos the powerful multinational has taken vindictive action against disabled people and carers’ websites where it is criticised, getting sites closed down which isolated people rely on for support.”

5. The website called ‘Grannie’s Last Mix’ ‘Letters from Desolation Row UK’, published this extract from a British Medical Journal (BMJ) publication, quoting a letter from Dr Greg Wood, former naval doctor and former ATOS assessor, then whistle blower, about the WCA:

https://sparaszczukster.wordpress.com/tag/general-medical-council/

‘Another Doctor Speaks Out Publicly Against Atos Work Capability Assessments’

Extract:

“PERSONAL VIEW”

“I blew the whistle on the government’s disability assessments”

“Greg Wood former naval doctor and Atos disability analyst.”

“Greg Wood went to the media with concerns about the ethics surrounding tests for fitness to work—and eligibility for benefits—that the UK government outsourced to Atos.

Actually, two whistleblowers went public before me, and several other doctors have raised concerns anonymously. I am a former general practitioner in the Royal Navy, where work related assessments are bread and butter stuff. The UK Department for Work and Pensions (DWP) devised the work capability assessment (WCA) to judge whether people who receive out of work sickness benefits could, in fact, cope with most forms of work. A more stringent test came into use in 2011, and the government made no secret of the fact that it hoped this would boost the labour market, improve people’s self esteem and personal income, and, of course, reduce government debt.

For many years the information technology and “business process outsourcing” company Atos has had a contract, now worth £100m (€116m; $155.4m) a year, to carry out several social security benefit assessments, including the WCA, for the Department for Work and Pensions. In my view this risks tension between doctors’ professional concerns on the one hand and business imperatives on the other.

The WCA had a troubled childhood. From early on, claimants and disability groups were reporting problems. They felt the assessment was a box ticking process, where medical assessors spent most of their time punching superfluous lifestyle data into the computer. And the likely outcome as they saw it? Computer says no. In fact, the test, on paper at least, isn’t too bad, though it isn’t going to win anyone a Nobel prize. But it cannot adequately take into account health conditions that fluctuate unpredictably, and it tries to include too broad a range of jobs. Driving, call handling, shelf stacking, data entry, and cleaning, for example, are all theoretically covered. And although the test is nominally a pre-employment medical test of sorts, it is really still about measuring the person’s level of disability. In early 2013 the WCA was still causing a rumpus in public, despite a series of external reviews.”

One problem that dawned on me over time was the widespread use of five ill conceived so called rules of thumb that were promulgated during the training of new assessors. On one, manual dexterity, the guidance was just plain wrong. The training said that this all boiled down to an inability to press a button, whereas the regulations allow points to be awarded when there are difficulties forming a pinch grip, holding a pen, or operating a computer. The other “rules of thumb” showed a combination of discrepancies and questionable interpretations of medical knowledge—for example, moving from one room to another at home was supposed to be equivalent to moving 200 metres. The effect was to reduce a claimant’s likelihood of entitlement to financial help. Another concern was the absence of documentary evidence, which, in my experience, occurred in about a fifth of assessments.”

(First publised by the BMJ Publishing Group Ltd in 2013)

*****I strongly recommend you read the rest of that letter on their website, and a supportive letter by Dr Glyn Phillips, GP, dated 23 August 2013.*****

 

K). INFORMATION ABOUT THE WCA, CRITICISM OF IT AND THE DWP – BY SUPPORT GROUPS, A TRIBUNAL UNIT AND THE MEDIA

As already mentioned and presented above, there has been endless criticism of the WCA, the DWP and ATOS Healthcare. The WCA has had a fair share of negative reporting, and this continued over the years of its use. Support groups and increasingly also media published information and critical reports on the WCA. Below is just a small sample of these:

1. ‘Rethink Mental Illness’, website publication – ‘factsheet’:
‘Work Capability Assessment’
http://www.rethink.org/living-with-mental-illness/money-issues-benefits-employment/work-capability-assessment

For downloading the PDF ‘factsheet’, try this following link:
http://www.rethink.org/resources/w/work-capability-assessment-factsheet

2. From the website ‘Birmingham Tribunal Unit’:
‘The Work Capability Assessment (WCA)’
http://www.btu.org.uk/guide-docs/44-the-work-capability-assessment-wca

3. ‘The Mirror’ reported on 04 April 2012:
‘32 die a week after failing test for new incapacity benefit’
http://blogs.mirror.co.uk/investigations/2012/04/32-die-a-week-after-failing-in.html

Extract:

“More than a thousand sickness benefit claimants died last year after being told to get a job, we can reveal.
We’ve highlighted worries about the controversial medical tests for people claiming Employment Support Allowance which are being used to slash the country’s welfare bill.

The Government has boasted that more than half of new claimants are found “fit to work” – failing to mention that over 300,000 have appealed the decision and almost 40% have won. Instead, employment minister Chris Grayling (below) says this “emphasises what a complete waste of human lives the current system has been”.”

“We’ve used the Freedom of Information Act to discover that, between January and August last year, 1,100 claimants died after they were put in the “work-related activity group”.

This group – which accounted for 21% of all claimants at the last count – get a lower rate of benefit for one year and are expected to go out and find work.

This compares to 5,300 deaths of people who were put in the “support group” – which accounts for 22% of claimants – for the most unwell, who get the full, no-strings benefit of up to £99.85 a week.

We don’t know how many people died after being found “fit to work”, the third group, as that information was “not available”.
But we have also found that 1,600 people died before their assessment had been completed.
This should take 13 weeks, while the claimant gets a reduced payment of up to £67.50 a week, but delays have led to claims the system is in “meltdown”.”

4. The Guardian, ‘Breadline Britain’, report from 20 June 2012:
‘Mental health of benefit claimants is put at risk by welfare reform’
“Work capability assessments, which identify those fit for work, are singled out for criticism by health professionals, campaigners and claimants”

http://www.theguardian.com/society/2012/jun/20/mental-health-benefit-claimants-risk

Brief extract:

“At the centre of the controversy is the work capability assessment (WSA), the test carried out in the UK by the French healthcare firm Atos that is designed to identify people on incapacity benefit who are “fit for work”. Critics say it fails to pick up complex and fluctuating conditions such as mental health. It is widely feared by vulnerable claimants – and for those who are found fit for work, it can trigger a long, stressful cycle of appeals.”

5. The Guardian reported on 16 December 2013:
“Ministers ‘ignored advice on inhumane fit-for-work tests’ “
“Welfare adviser says he wanted a delay to work capability tests but government pressed ahead with reassessments”
http://www.theguardian.com/politics/2013/dec/16/ministers-ignored-advice-fit-for-work-tests

Extract:
“A government welfare adviser has suggested thousands of ill and disabled people were subjected to “inhumane and mechanistic” fit-for-work tests after ministers ignored his advice not to push ahead immediately with plans to reassess 1.5 million claimants on incapacity benefit.

Professor Malcolm Harrington told the Guardian he believed the work capability assessment (WCA) was “not working very well” when the coalition took power in 2010, and he told ministers a big expansion of the scheme should be delayed for a year to enable the tests to be improved.

Harrington, an occupational health specialist who carried out three official reviews of the WCA between 2010 and 2012, said: “If they had changed the system to make it more humane I would suggest that some of the people who went through it would have had a less traumatic experience.”

Ministers pressed ahead with the reassessment of long-term incapacity benefit (IB) claimants in May 2011, despite Harrington’s warnings and campaigners’ concerns that the system was flawed. The test has since become politically controversial. Critics say it is crude, inaccurate, discriminates against mentally ill claimants, and causes widespread stress, anxiety and even suicidal feelings among claimants.”

6. The Guardian, 27 March 2014:
‘Atos quits £500m work capability assessment contract early’
http://www.theguardian.com/society/2014/mar/27/atos-quite-work-capability-assessment-contract-early

Extracts:
“Atos will receive no compensation and has made ‘substantial financial settlement’ to DWP for early termination of contract”

“The contract with Atos to administer millions of fit-for-work tests for sick and disabled people a year is ending early, the government has announced.

The £500m agreement to carry out work capability assessments had been due to end in August next year but following widespread public and political anger over the tests, which have been criticised by MPs and campaigners as crude and inhumane, the agreement will now end early next year.

There has been mounting evidence that hundreds of thousands of vulnerable people have been wrongly judged to be fit for work and ineligible for government support. The Department for Work and Pensions (DWP) said that the decision had been reached after “joint negotiations” with Atos. Ministers had been in private discussions with the company since the summer over the quality of its operation but if the government had terminated the contract it would have been faced with a penalty payment.
Mike Penning, the minister for disabled people, said: “The previous government appointed Atos as the sole provider for carrying out work capability assessments and since then we have carried out several independent reviews and made significant improvements to the assessment.
“Today we are announcing that we are seeking a new provider to replace Atos, with the view to increasing the number of assessments and reducing waiting times”.”

7. The Guardian, 11 June 2014:
“Work capability assessment system at ‘virtual collapse’, says judge”
http://www.theguardian.com/society/2014/jun/11/work-capability-assessment-collapse-benefits
“Robert Martin, outgoing head of benefits appeal tribunal, says DWP was too optimistic about conducting fit-to-work tests”

 

L). THE MAN AND MIND BEHIND THE ‘ALL WORK TEST’, THE ‘PERSONAL CAPABILITY ASSESSMENT’ – AND CONTRIBUTOR TO THE ‘WCA’

Very instrumental in the introduction of the ‘All Work Test’ as the earlier form of a work capability test used in the UK was Professor Mansel Aylward. He also helped develop the ‘Personal Capability Assessment’ used by the DWP, and had his own indirect input into the WCA, which is simply a further development of the earlier assessments. See details about Professor Mansel Aylward published on the website of ‘Public Health Wales’:

http://www.wales.nhs.uk/sitesplus/888/page/64606

Extract from the website profile:

“He is also Director of the Centre for Psychosocial and Disability Research at Cardiff University which offers a unique opportunity to extend knowledge and understanding of the psychosocial, economic and cultural factors that influence health, illness, recovery, rehabilitation and reintegration.”

“From 1996 to April 2005 he was Chief Medical Adviser, Medical Director and Chief Scientist to the UK’s Department for Work and Pensions. He was also Chief Medical Adviser and Head of Profession at the Veterans’ Agency, Ministry of Defence. From 2001 – 2009 he was The Royal Society of Medicine’s Academic Sub Dean for Wales.

He is a physician and specialist in rheumatology and rehabilitation, therapeutics and clinical pharmacology; a visiting Professor at several universities in Europe and North America and a consultant to the United States Social Security Administration and Department of Labour.

He entered the British Civil Service in 1985 and was appointed Chief Medical Adviser at the Department of Social Security in 1996 and at the Department for Work and Pensions in 2000. From 1974 to 1984 he was Chairman and Managing Director of Simbec Research Ltd, UK, and President of Simbec Inc, New Jersey USA.

He played a key role in development and evaluation of the UK’s medical assessment for incapacity (the All Work Test), and was heavily involved in developing the Personal Capability Assessment (PCA). He led the Corporate Medical Group on the UK Government’s Welfare Reform initiatives and made a major contribution in establishing the new postgraduate diploma for doctors in Disability Assessment Medicine. He was closely involved in developing the UK’s successful “Pathways to Work” initiatives and a framework for Vocational Rehabilitation.”

Re ‘Department of Social Security’ (DSS) see:
http://en.wikipedia.org/wiki/Department_of_Social_Security
Re ‘Department for Work and Pensions’ (DWP) (created 08 June 2001) see:
http://en.wikipedia.org/wiki/Department_for_Work_and_Pensions

More information about Mansel Aylward, and his somewhat suspicious, peculiar connections to the controversial health and disability insurance corporation ‘Unum’ can be found in a great Guardian article from 17 March 2008 titled ‘E pluribus Unum’, by Jonathan Rutherford:

E pluribus Unum

http://www.theguardian.com/commentisfree/2008/mar/17/epluribusunum

“James Purnell’s reforms of incapacity benefit are inspired by a US company with vested interests and a murky record. Now, that’s really sick“

 

Extract:

“The history of the work capability assessment provides some answers. In 1994, the Tory government hired John LoCascio, second vice-president of giant US disability insurance company, Unum, to advise on reducing the numbers successfully claiming IB. He joined the “medical evaluation group”. Another key figure in the group was Mansel Aylward. They devised a stringent “all work test”. Approved doctors were trained in Unum’s approach to claims management. The rise in IB claimants came to a halt. However, it did not reduce the rising numbers of claimants with mental health problems. The gateway to benefit needed tightening up even more.

In 1999, New Labour introduced its first Welfare Reform Act. All new claimants had to attend a compulsory work focused interview. Mansel Aylward, now chief medical officer of the DWP, devised a new personal capability assessment (PCA). The emphasis was no longer on entitlement, but on what a person is capable of doing. The task of administrating the PCA was contracted out and is now run by the US corporation Atos Origin. Its computerised evaluation of claims driven by clearance time targets has resulted in significant numbers of rejected claims, particularly for those with mental illness.

Unum has built up its influence in Britain. In July 2004, it opened its £1.6m Unum Centre for Psychosocial and Disability Research at Cardiff University. The company appointed Mansel Aylward as director following his retirement from the DWP in April. The launch event was attended by Archie Kirkwood, recently appointed chair of the House of Commons select committee on work and pensions. Malcolm Wicks, minister of state in the DWP, gave a speech praising the partnership between industry and the university.

The aim of the centre is to transform the ideology of welfare and so help develop the market for Unum’s products. In 2005, the centre produced a monograph The Scientific & Conceptual Basis of Incapacity Benefits (TSO, 2005) written by Aylward and his colleague Gordon Waddell. It provides the framework for the 2006 welfare reform bill. Its methodology is the same one that informs the work of Unum.”

Own Comments re Mansel Aylward

Professor Mansel Aylward has been a leading promoter of the idea and the related theories that “work is good for health”, supposedly even “therapeutic”. His position is that sick and disabled would be better off working, in jobs on the open employment market, where they would “contribute” to society, are “active” and thus “participate” socially, and represent less of a burden to society. He claims that many health conditions and various conditions or degrees of impairment – due to injury or a more congenital nature, could be “treated” better by having the persons that have them go and work.

His now often quoted “research”, which may in some respects look convincing and even follow some scientific study principles, does though by looking at it more closely reveal, that it was mostly conducted on reading other literature, other medical, economic and social statistical reports, and drawing his conclusions out of perceived “correlations”. An apparent association or “correlation” between two sets of data, or two conditions, does though not necessarily give clear, convincing information on whether one is the cause of the other. Presentations used by Mansel Aylward, and some that support his theories, do reveal, that there is some evidence of hand-picked, selected data being used to make a certain point. The claim seems to be that “worklessness” is bad for health, is actually causing “serious harm”, and is therefore aggravating already poor health, and adding further ill health. Aylward and like minded “experts” attempt to argue that sick, injured and disabled should not be allowed to take time off to recover and rest for too long, as a return to work would be more “therapeutic”. There is only marginal acceptance that much work may also be harmful to health, and no consideration appears to be given to the fact, that is may rather be some moderate, safe physical and mental activity that has the beneficial effect on health, helping sick and disabled “recover”. That may be proper advice to give, rather than send them out to find work on an already very competitive job market, where many suffer endless stress, anxiety and many other conditions, due to so much work being insecure and precarious.

Also may the actual cause for much ill health, disease and further incapacity, that is associated with long term unemployment, rather be found in the POVERTY that comes with not being able to work and earning a good enough income to live. And in any case, the attempts by Aylward et al, to blur the lines between the severities that certain conditions may have, to then facilitate “work capability assessors” to classify more sick and impaired as “fit for work” (on the open market), these are ethically questionable approaches. They expose many with serious enough health conditions and disability to risks that they will face, by being expected to go and find work, and then maintain it, while it is often very hard for the fit and healthy people to do so. Encouraging welfare agencies, administered by governments, to also tighten benefit entitlements, and pay the affected lower benefits, is equally questionable.

Here is an earlier post that reveals and presents ample other information on Mansel Aylward, his like minded medical professional colleagues, his “research” and the on the medical and work capability assessments in the UK, to some degree now followed in New Zealand:

https://nzsocialjusticeblog2013.wordpress.com/2013/09/02/medical-and-work-capability-assessments-based-on-the-controversial-bio-psycho-social-model/

 

M). AYLWARD, WADDELL ET AL, ALL WORKING ON THE SAME AGENDA

Besides of Professor Mansel Aylward, there has been repeated reference to, and mention of, a number of his colleagues with similar research interests and also views. Some like Professor Gordon Waddell have also worked at the ‘Centre for Psychosocial and Disability Research’ at Cardiff, for years once “sponsored” by ‘UnumProvident’ health and disability insurance company, others have more indirect affiliations. They all share a strong, supportive position on the supposed health benefits of work, are very critical of the state and consequences of “worklessness”, and interpret the “biopsychosocial model” in a way, where much in the way of illness is suspected to be merely having its origin in people’s minds.

The following presents a list of interesting publications by Dr Gordon Waddell, Kim Burton, Mansel Aylward, Peter Halligan and John LoCascio (once with UNUM), that give insight into their research theories and thinking behind them.

Also perhaps see and read this post on a blog from 11 August 2006:
http://www.benefitsandwork.co.uk/news/143-us-medical-scandal-company-at-heart-of-uk-welfare-reform

Relevant publications of special interest that deserve much scrutiny and that should be treated with some scepticism re their actual scientific reliability and value:

One of the publications by Dr Gordon Waddell, who also closely worked with Dr Mansel Aylward, both based at the ‘Centre for Psychosocial and Disability Research’ at Cardiff University, is the following:

‘IS WORK GOOD FOR YOUR HEALTH AND WELLBEING?’, Gordon Waddell and A. Kim Burton, 2006:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/214326/hwwb-is-work-good-for-you.pdf

Further publications by “experts” from that Centre, all apparently designed to “blur” the conventional lines in medical science, and to “soften” the resistance that there may have been, to accept these controversial “new findings” that their research delivered, are these:

‘MODELS OF SICKNESS AND DISABILITY’, Aylward and Waddell, 2010:
http://www.craigliebenson.com/wp-content/uploads/2010/08/Models-final-proofs2.pdf
“APPLIED TO COMMON HEALTH PROBLEMS”

‘The Scientific and Conceptual Basis of Incapacity Benefits’, G. Waddell and M. Aylward, not freely available via the internet, but available as a book, 11 Oct. 2005:
http://www.amazon.co.uk/Scientific-Conceptual-Basis-Incapacity-Benefits/dp/011703584X

A presentation that is now used to serve as an “evidence base” for conducting radical social security reforms in relation to health and work ability assessments, is this one:

‘REALISING THE HEALTH BENEFITS OF WORK’, Mansel Aylward, presentation, RACP (Royal Australasian College of Physicians) and AFOEM, Australia and NZ, May 2010:
http://www.racp.org.nz/page/racp-faculties/australasian-faculty-of-occupational-and-environmental-medicine/realising-the-health-benefits-of-work/may-2010-video-presentation-professor-sir-mansel-aylward/
http://www.racp.org.nz/index.cfm?objectid=58C41516-C2D1-1FF1-8CC71B74C8444FB3

That presentation contains summarised selectively chosen statistics and “research findings”, all prepared to “convince” the medical professionals, their organisations and governments “Down Under” (in Australia and New Zealand)!

The Power of Belief’, ‘Psychosocial influences on illness, disability and medicine’; edited by Peter W. Halligan and Mansel Aylward (see short book extract), Oxford University Press:
http://ukcatalogue.oup.com/product/academic/medicine/9780198530107.do?sortby=booktitleascend

‘Malingering and illness deception’, a book by Peter Halligan, Christopher Bass and David A. Oakley, “enthusiastically” supported by Mansel Aylward, Oxford University Press, 2003*:
http://www.meactionuk.org.uk/Malingering_and_Illness_Deception.pdf

* See and read Mansel Aylward’s own “contribution” in this publication, from page 287 on. Also John LoCascio (once with Unum) provides a “contribution” from page 301 onwards.

To understand the significance of the above publication, read ‘Vox Political’ on this:
Found: The book that helps the government smear the sick as ‘malingers’, fr. 04 Aug. 2014 (posted by Mike Sivier):
http://voxpoliticalonline.com/tag/mansel-aylward/

Please also take note of this fact:
Professor Peter Halligan, who published various controversial reports on mental health, he also worked with Professor Mansel Aylward at Cardiff University in Wales, see this link:

http://psych.cf.ac.uk/contactsandpeople/academics/halligan.php

He is based at the ‘School of Psychology’, at Cardiff University in Wales, and his “School” has worked closely with Mansel Aylward’s “Centre for Psychosocial and Disability Research” based at the same university!

Here is reference to more of his “publications”, much apparently pre-occupied with “malingering” and similar behaviours:
http://orca.cf.ac.uk/58314/
‘Factitious disorders and malingering: challenges for clinical assessment and management’

See Professor Halligan’s LinkedIn profile:
http://uk.linkedin.com/pub/peter-w-halligan/21/43a/91a

It says in the summary on the front page (as on 17.01.2015):
“Dean of Interdisciplinary Studies at Cardiff University from 2006 until 2012. Professor Halligan joined the School of Psychology as Distinguished Research Professorial Fellow from Oxford University where he was a Research Fellow working in the Departments of Clinical Neurology and Experimental Psychology.

Since joining Cardiff, he has played a central role in establishing Cardiff University Brain Research Imaging Centre (CUBRIC), Wales Research and Diagnostic Positron Emission Tomography Imaging Centre (PETIC), Wales Institute of Cognitive Neuroscience (WICN), the UnumProvident Centre for Psychosocial and Disability Research, the Cardiff Cognitive Neuroscience Seminar Series, School of Psychology MindArt project, Haydn Ellis Distinguished Lecture Series and the Cardiff University Research Institutes.”

 

N). FORMS OF WORK CAPABILITY ASSESSMENTS IN USE IN NEW ZEALAND

 

1). ACC’s “Functional capacity evaluation”

So far there has in New Zealand not been a similar approach taken to use a single, points based functional assessment like the WCA in the UK. But there have been and are other kinds of assessment processes, like for instance one called ‘functional capacity evaluations’ that ACC (the Accident Compensation Corporation) uses, and which have been conducted by special service providers that ACC use:

Details re this are found on their website, see this link:
http://www.acc.co.nz/for-providers/contracts-and-performance/all-contracts/WCMZ002169

Extract from the ACC website:

“Overview”

“A task-specific functional capacity evaluation is a structured process of observing and measuring an individual performing tasks in order to identify performance deficits and safety issues, functional abilities, strengths, skills and capacity to perform specific work-related tasks.

The provider will provide assessment services to ACC claimant’s referred to the provider by a case manager.”

“Purpose of the service”

“The purpose of the task-specific functional capacity evaluation is to provide the case manager with base-line information about a claimant’s ability to reliably and safely sustain specified tasks.

The Task-specific functional capacity evaluation is an assessment undertaken by the provider in respect of a claimant’s ability to sustain specified job tasks which have been identified by the case manager in the referral.

It differs from a full functional capacity evaluation in that a provider is not required to identify suitable vocational tasks or determine broad occupational functioning abilities in respect of the claimant.”

“● A task-specific functional capacity evaluation involves four components:

• reviewing the history
• interviewing the claimant
• observing the claimant undertaking specific tasks, which have been identified in the referral from the claimant’s case manager, and
• conducting a variety of measurements while the claimant performs the specific duties/tasks of the claimant’s job.

● Task-specific functional capacity evaluations are tools to assist the development or implementation of a rehabilitation plan. They are not stand-alone assessments and must always be used in conjunction with other sources of information about the claimant. Task-specific functional capacity evaluations are useful adjuncts to the delivery of pro-active and positive case management, leading to a safe and durable return to employment, work readiness or independence in activities of daily living.

● The purpose of purchasing task-specific functional capacity evaluations is to:

• provide case managers with access to task-specific functional capacity evaluation services which are cost-effective, provided in a safe environment, and delivered in a timely manner
• support sustainable and measurable improvements in claimant’s rehabilitation and return-to-work, work readiness or independence outcomes

• match claimant capabilities to specific identified work tasks where possible
• identify the maximum level of functional performance relating to specific tasks which acts as a point from which to build rehabilitation

• assist rehabilitation planning and implementation
• enhance objectivity in the rehabilitation and return-to-work process, and
• determine the occupational functional ability of the individual claimant to perform specific occupational tasks.

● Task-specific functional capacity evaluation reports are time-limited documents reflecting what a claimant can do at a particular point in time. For most claimants, task-specific functional capacity evaluation reports older than six months should not be relied on to predict performance.

 

2). ACC’s ‘Initial Occupational Assessment’ and ‘Initial Medical Assessment’

Other assessments that ACC use are briefly outlined and explained in the following:

Of particular interest is an official document found via this link:

‘Vocational Medical Assessors’, ‘Operational Guidelines’, ACC, October 2008:
http://www.google.co.nz/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0CCgQFjAC&url=http%3A%2F%2Fwww.acc.co.nz%2FPRD_EXT_CSMP%2Fidcplg%3FIdcService%3DGET_FILE%26dID%3D59660%26dDocName%3DPRD_CTRB093519%26allowInterrupt%3D1&ei=DxrHVOOjA8fd8AW2-YHgBQ&usg=AFQjCNEc9EXo28qo_xWetvSAgV-RVWmcVQ&bvm=bv.84607526,d.dGc

Note: If the above link does not work, try to download and read the attached MS Word document copy – freely available via the web:
ACC, Vocational Medical Assessors, Operational Guidelines, prd_ctrb093519, Oct. 2008

Two main types of assessments are explained in this operational guide (fr. pages 7-8):

The Initial Assessments (IOA and IMA)

Initial Occupational Assessment (IOA)

The purpose of the IOA is to:
● Assess the client’s skills, experience and ability to undertake employment
● Identify suitable types of work for the client based on their education, experience, pre-incapacity earnings, and training
● Complete a work type detail sheet for each suitable work type.

Initial Medical Assessment (IMA)

Purpose of the IMA
The purpose of the IMA is to produce a report that ACC uses to determine the client’s vocational rehabilitation needs and direction. It requires the medical assessor to consider the types of work that have been identified in the IOA and give an opinion on whether any of the types of work are, or are likely to be, medically sustainable for the client.

The tasks on the work type detail sheet must be considered against the client’s post-injury condition, and the sheets used with the Department of Labor Physical Demand Characteristics of Work (see Appendix 7 on page 47 for an example) which defines the terms used by occupational assessors and includes the terms occasional, frequent, and constant with the percentages of the workday, as well as physical demands such as sedentary, light, medium, heavy, very heavy, and the typical energy required.

If the type of work is only likely to be sustainable, the report needs to show evidence of the rehabilitation the client will need in order to carry out the identified type(s) of work.

Assessors to list their qualifications
As experts it is important that medical assessors specify their qualifications. This should include all qualifications and experience relevant to the type of report they are writing. In terms of the information considered and the history obtained, the assessor should:

● Identify the documents sent to them by ACC or other sources, eg the client
Note:
If the assessor needs more information from ACC, they should request this from the client service staff member who referred the client to them.

● Detail who attended the assessment, eg support person or lawyer and what input they had, if any
● Identify elements of the history given by, or obtained from, other parties
● Highlight any relevant inconsistencies in the history and information.

For the examination and clinical findings, medical assessors should:
● Document the time taken for the assessment
● Document all the aspects of the examination – it is easy to omit parts of the routine clinical examination, eg pertinent normal findings

● Describe all tests performed – detail reduces the potential for later dispute.

When commenting on the types of work, medical assessors should:
● Comment on the adequacy or otherwise of information provided on the tasks involved in the types of work
● Focus on the generic aspects of the tasks
● Give reasons why a type of work is, or is not, medically sustainable – a simple list is not sufficient
● Tie the reasoning back to the examination findings, the comments and input of the client, and the information provided
● Include comments on the non-injury related conditions, and the impact or otherwise on medical sustainability or the client’s capacity to undertake work
● Provide recommendations for treatment/rehabilitation that could assist the client in sustaining a work type, eg pain management, work trial.

The IMA must determine whether the types of work identified by the IOA are, or are likely to be, medically sustainable. This is required under Part 4 section 89 of the AC Act.

See also Qualifications required for Occupational and Medical Assessors on pg 4.”

The following document, found online, from July 2013, contains some more current information on the above types of assessments:

Initial Medical Assessment and Vocational Independence Assessment, Guidelines for Providers, ACC, July 2013:
http://www.acc.co.nz/PRD_EXT_CSMP/groups/external_providers/documents/guide/prd_ctrb093519.pdf

If there are problems with the link, click this:
ACC, IMA and VIA, Guidelines, document, prd_ctrb093519, 2013

That Guide does (perhaps not that surprisingly, given the intense efforts to influence politicians, government agencies and medical professional organisations) also contain this familiar, very revealing bit of information (from page 28):

9. Employment and Work Ability

Employment and Health
There have been numerous studies on the effects of employment on a person’s physical and mental well being.

In 2006 Waddell and Burton published “Is Work Good for Your Health and Well Being?”1 in which they examined the role of employment in the wellbeing of individuals, their families and their communities and also looked at the association between worklessness and poor health. They found a strong evidence base that work is generally good for physical and mental health and well-being and that worklessness was associated with poorer physical and mental health.

They also found that work could be could be therapeutic and could reverse the adverse effects of unemployment in the majority of healthy people of working age as well as for sick and disabled individuals and they should be supported and encouraged to remain in or to re-enter the work force as soon as possible because of the benefits.

We do need to remember this evidence in assessing the fitness for work and the relative enhancement of health.

And in relation to these kinds of assessments used by ACC, there are also a number of discussion threads on ACC Forum, debating the policy and practices that ACC has in recent years been following. One highly disturbing development was what was later identified as being their commonly called “exit strategy” for long-term, complex costly claims. Here are two links to relevant discussion threads:

Re Functional Capacity Evaluation (from 31 January 2008)
http://accforum.org/forums/index.php?/topic/6175-functional-capacity-evaluation/

Re ACC Limiting Choice For Initial Medical Assessment (fr. 15 May 2009)
http://accforum.org/forums/index.php?/topic/7761-acc-limiting-choice-for-initial-medical-assessment/

 

Own Comments:

In relation to the above, it is of interest that the capacity evaluation or assessment is here only about “task specific” functions. So this is not a full functional capacity evaluation. ACC also has more comprehensive assessments, but what intrigues us here, is that a “case manager” may specify what tasks and necessary functions to perform them may need to be evaluated. This is a selective, somewhat narrowed down approach, which can leave an affected ACC claimant exposed to unreasonable presumptions and expectations by a case manager, who may try and seek any hypothetical functional ability a person has, that may be considered sufficient to expect the person to find some particular forms of work. Whether it is a realistic and reasonable expectation is another question.

The ‘Initial Medical Assessment’ (IMA) and ‘Initial Occupational Assessment’ (IOA) are more comprehensive, traditional types of assessments, gathering medical, occupational and various other information on the claimant, including past work, education, and social and environmental details. At least for the IOA the “biopsychosocial” approach for assessments is being used. ACC offer support for rehabilitation, and expect claimants to participate where reasonably possible, and efforts are made to establish types of work that a person may be able to perform, for usually at least 30 hours a week.

These assessments and evaluations may generally follow similar approaches as used in the UK, but are still rather different to the WCA itself. The ACC assessments are rather made by using existing medical and other records, and by interviewing the claimant with targeted questions, to which the answers will be noted down and analysed. It appears that all these various evaluations and assessments have over time been altered to integrate the same “findings” that are so often quoted, by Waddell, Burton and Aylward et al, from the school of thought, which insurance companies, state welfare agencies and others now prefer to rely on. The emphasis is on work ability, rather than disability, and medical factors that may in the past have given reason to categorise a person as not having capacity for work are increasingly being given less credit, as theoretically and hypothetically every person can still perform some kind of functions, to potentially “work”. The fact that the many limited functions so many people with injuries, with permanent, serious physical and mental health conditions have, do not realistically enable them to do jobs on the employment market, is treated as not relevant. Existence and availability of employment is not meant to be part of the consideration for the assessors. Through re-categorisation of existing conditions and cases, and strict assessments for future cases, an increasing number of persons are thus considered “fit for work”, and put on welfare or other support, that is at a lower rate, and which has some forms of work obligations attached to them. It is again the main agenda to simply save costs. People that suffer from frequent or permanent pain, or other symptoms, will be expected to either use condition management practices or to take medication.

A decision based on evaluations and assessments done for and by ACC can be challenged through the ACC review process. ACC claimants still have the chance to take matters further to the courts, which WINZ clients can only do if a Medical Appeal Board made a decision that was wrong in law, so a judicial review may be possible.

 

3). Work Ability Assessments now also conducted for Work and Income and MSD

Following the major welfare reforms with the passing of the ‘Social Security (Benefit Categories and Work Focus) Amendment Act’ (in 2013), the Ministry of Social Development (MSD) and their department Work and Income NZ (WINZ) have in early 2014 also introduced ‘Work Ability Assessments’ for clients with ill health, injuries and forms of disability. They introduced a range of newly contracted service providers that are commissioned to assess the probably more complex cases of clients for their ability to perform certain work.

There is though not one single “assessment” or “test”, nor a clearly defined set of medical criteria or guidelines that have been published, that would give any public insight into how such ‘Work Ability Assessments’ have to be conducted. There is NOTHING shedding any light on what medical or occupational standards and guidelines are used when conducting these assessments. This is hard to believe, especially since there was some serious concern about this during the Select Committee hearing process, the Readings and the passing of the ‘Social Security (Benefit Categories and Work Focus) Amendment Bill’ in 2012 to 2013. But it was only briefly reported on during the “Select Committee” process.

It appears though that the Members of Parliament and their political parties have failed to further examine and follow up this completely irresponsible and unacceptable lack of transparency and information. This serious failure may be due to the fact, that the leading opposition Labour Party did during their last term in government (until late 2008) plan to implementing similar, only slightly more moderate welfare reforms, that included new ways of “assessing” sick and disabled for their fitness for work. Smaller parties may have lacked the human and other resources, or sense of urgency, to conduct their own investigations.

The only tangible, but highly summarised, and general information that can be found on ‘Work Ability Assessments’ through an internet search is found by clicking the following links:

For general information on the ‘Work Ability Assessment’ and its purpose:
http://rnzcgp.org.nz/work-and-income-update-on-work-ability-assessment/
http://rnzcgp.org.nz/assets/documents/News–Events/Work-Ability-Assessment-Questions-and-answers-3.pdf

For information on the “self assessment questionnaire” that WINZ clients now have to complete as part of their application for benefit support, and for maintaining support:
http://www.workandincome.govt.nz/online-services/myaccount/help/self-assessment.html

For a PDF file copy of the ‘self assessment questionnaire’ itself:
http://www.workandincome.govt.nz/documents/forms/self-assessment-questionnaire.pdf

And again, some very general, brief information on such assessments, offered by one of the contracted service providers ‘Linkage’ (as part of the ‘Wise Group’):
http://www.linkage.co.nz/services/work-ability-assessments

For information for clients that claim ‘Jobseeker Support’ from Work and Income, re their obligations:
http://www.workandincome.govt.nz/individuals/obligations/obligations-for-getting-jobseeker-support.html

Further other important info of relevance can be found via these links:

‘Social Security (Benefit Categories and Work Focus) Amendment Act 2013’:
http://www.legislation.govt.nz/act/public/2013/0013/latest/DLM4542304.html

‘Social Security (Benefit Categories and Work Focus) Amendment Bill 2012’:
http://www.parliament.nz/en-nz/pb/legislation/bills/00DBHOH_BILL11634_1/social-security-benefit-categories-and-work-focus-amendment

All evidence and submissions presented on that Bill to Parliament:
http://www.parliament.nz/en-nz/pb/sc/documents/evidence?custom=00dbhoh_bill11634_1

The Select Committee Report on the submission hearings and discussions:
http://www.parliament.nz/en-nz/pb/sc/documents/reports/50DBSCH_SCR5776_1/social-security-benefit-categories-and-work-focus-amendment
http://www.parliament.nz/resource/en-NZ/50DBSCH_SCR5776_1/8c96283ba5105e2776ac6c6c449518a168b0a164

 

Further comments

During the welfare reform process, there was some mention made by some senior staff at the Ministry of Social Development, and by the then Minister for Social Development (Paula Bennett), that they looked at how ACC was working with rehabilitating injured persons that claim support from that state run corporation. So it appears that some approaches have been taken over from ACC, but we have little reliable, clear, detailed information about how such assessments are done, what processes are followed, and what guidelines they use.

This astonishing fact, that medical and now also especially work capability assessments conducted for ‘Work and Income’ and MSD seem to lack any clear set of standards and guidelines, is extremely disturbing. Despite of all its faults, the WCA in the UK has at least offered some clarity with the activities and descriptors used, although this was applied in a very negative and harmful way. No such clarity exists here in New Zealand, with the way how MSD and WINZ have their contracted providers conduct and deliver assessments on “work ability”.

At least some insightful information has been gathered and published in a range of posts that are found on this blog-site via the following links:

https://nzsocialjusticeblog2013.wordpress.com/2014/06/21/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-a/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-b/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-c/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-d/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-e/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/24/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-f/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/25/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-parts-g-and-h/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/26/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-i/

 

O). THE CONCLUSIONS THAT NEW ZEALANDERS SHOULD DRAW FROM THE DISASTROUS WELFARE REFORMS IN THE UK, WHERE THE FLAWED AND HARSH APPROACHES HAVE NOT DELIVERED, AND WHERE THE WCA IS NOW DISCREDITED

For New Zealand and New Zealanders, the abundant information presented in this comprehensive blog contribution should make it absolutely clear, that the radical, rather draconian welfare reforms introduced under the last National Party led government here in New Zealand have been based on extremely poor “research” and “advice”. The very persons behind the development of the WCA in the UK, first and foremost Professor Mansel Aylward, also “advised” the New Zealand government (Paula Bennett as Minister), and the Ministry of Social Development on welfare reforms. Mansel Aylward and Dame Carol Black (who adopted many of Dr Aylward’s and his close colleague’s “findings” into her reports), BOTH of them “advised” the appointed, so-called ‘Health and Disability Panel’ (which was again “advising” the then Minister and New Zealand government) on the “value” of the “research” into the “health benefits of work”. A senior role within that ‘Health and Disability Panel’ was also played by Dr David Beaumont, formerly of Atos Healthcare in the UK, who has over the years provided sometimes controversial “advice” on ACC review cases, and who runs his own ‘Pathways to Work’ business here in New Zealand. He is now also the President of the AFOEM (Australasian Faculty of Occupational and Environmental Medicine), and was instrumental in having Mansel Aylward introduce his “findings” and recommendations on the “health benefits of work” into the AFOEM and with that the New Zealand and Australian medical science professions.

It was the same ideas and approaches that culminated in the introduction of the WCA in the UK, that lie behind the new approaches taken here, in the area of “work ability assessment”. Only because the widely reported harm and damage done by the even more draconian, rigorous welfare reforms and assessments in the UK alerted some media and disabled support groups here in New Zealand, could similar harm be avoided here. They raised questions which the New Zealand government appears to have become concerned about. Yet instead of completely abandoning the new approach, to look rather at what sick and disabled “can do”, than what they “cannot do”, the planned new systems and approaches were given some tweaks, and then still introduced. While in the UK there is at least some clarity with the WCA they use, in New Zealand there are NO clear standards, legally binding guidelines or “tests” in use, that determine how in particular assessments for “work ability” should be conducted. Despite of earlier promises by the Minister, there has to date not been any transparency on how doctors or other health professionals – tasked with conducting such assessments for WINZ – are supposed to do their work, and what criteria should be applied. We have a vague, “discretionary”, almost secretive case by case approach, where sick and disabled appear to be “experimented” with, to establish, whether they can do some work on the open market, or not.

As the welfare reforms in New Zealand were introduced and implemented in a rushed manner, relying on insufficiently researched and partly even blatantly biased, unsubstantiated “advice” and reports, they deserve relentless scrutiny and re-examination. The way the reforms were introduced, with a lack of sufficiently convincing, reliable and actually truly independent research and advice, this totally discredits the whole reform approach, and should lead to at least the most draconian measures being immediately reversed. The information provided in this post and research summary shows again, how a close circle of UK based “experts”, led by controversial Professor Mansel Aylward, and supported by vested interest parties, managed to use concerted efforts and effectively influenced policy formation and implementation. The background of Aylward and others, their links to UnumProvident, and their various “experts” and “research”, cast a dark shadow of doubt about the supposedly “independent” and “evidence based” advice the New Zealand Government received and accepted. While the UK and DWP are now going as far as reconsidering and reviewing the ESA and WCA, further changes here should be avoided – or actually rather be put on an immediate hold. The New Zealand Government would be well advised to wait until more reliable, objective research is done and completed, by independent researchers, before they proceed with their radical reforms to “support” or rather PRESSURE sick and disabled into questionable, potentially unsuitable employment on the competitive job market.

It may indeed be a more constructive approach, to perhaps seriously consider the introduction of a Universal Basic Income (UBI), which would be topped up by specific supplements for persons with particular extra needs, such as sick and disabled unable to work. That would abolish the requirement for those having serious health conditions and suffering incapacity to “prove” that they are “deserving” of financial support, and save an enormous amount of administrative costs. What is certainly needed is a truly science based, proven, fair, respectful and reasonable assessment regime, to have persons with health conditions and disabilities examined for work ability. It would be more constructive to design a smarter welfare system that does away with the punitive, sanction driven approach we have now, and offers sensible, constructive incentives for persons to seek suitable employment, while also introducing legal responsibilities for employers to offer work for such people. At the same time more recognition must be given to voluntary work person may do. What is also more than overdue is the introduction of a different, truly independent, competent and fair review system for those that disagree with WINZ assessment outcomes. The present appeal system offered by the ‘Social Security Act 1964’ (to be “re-written” very soon), is not meeting basic natural justice requirements, and Medical Appeal Boards must not be appointed by MSD staff anymore. A proper further appeal stage must be introduced, to allow persons to take their cases to at least a form of Tribunal, like in the UK, or to the courts as such, not just in the form of judicial review. Also would an official investigation into the use, training and management of “Designated Doctors” be appropriate, given serious questions about their “independence” in making recommendations.

The present systems in New Zealand and the UK leave much to be desired, and an overhaul of systems is certainly something we need. On this note, I close this post with thanks to the readers for their interest and shared concerns. Those that can take action, please lobby for change and make submissions on any prospective legal and other reforms we may face.

Quest For Justice

31 January 2015

(updated 05 Feb. 2015)

 

 

Here is a PDF file with the whole post as above, but perhaps better readable:

The discredited WCA in the UK, its demise and what it means for NZ, QFJ, NZSJB, 05.02.2015

 

APPENDIX:

 

Here is a list of other publications that reveal more of the truth behind the “reforms”:

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/

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/2014/10/19/nz-finance-minister-bill-english-insults-beneficiaries-with-mansel-aylwards-work-will-set-you-free-approach/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/21/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-a/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-b/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-c/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-d/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/22/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-e/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/24/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-f/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/25/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-parts-g-and-h/

https://nzsocialjusticeblog2013.wordpress.com/2014/06/26/work-ability-assessments-done-for-work-and-income-a-revealing-fact-study-part-i/

https://nzsocialjusticeblog2013.wordpress.com/2014/10/04/advice-to-winz-beneficiaries-facing-medical-examinations-and-work-ability-assessments/

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

 

ADDENDUM 1: 14 FEBRUARY 2015:

 

‘Intolerable pressure real cause of MSD security issues’

http://www.scoop.co.nz/stories/PO1502/S00132/intolerable-pressure-real-cause-of-msd-security-issues.htm

 

Media release Wednesday 11 February 2015: Auckland Action Against Poverty (AAAP)


“The MSD report released yesterday deals with the consequences of a system which daily sets out to harass, belittle and punish people while failing to recognise deeper causes of security problems,” says Auckland Action Against Poverty spokesperson Sue Bradford.

“The intolerable pressure placed on staff and beneficiaries by successive welfare reforms is the true cause of security problems at Work & Income offices.

“There is no question that MSD staff deserve to be safe at work, as do all workers.

“But Government should be looking way beyond guards and risk compliance policies for genuine, longterm solutions.

“What’s needed is a wholesale change to welfare policies and practices, starting with an end to the culture of denial which sees thousands of people turned down each day for the support to which they’re entitled.

“At Auckland Action Against Poverty’s Mangere beneficiary ‘impact’ in August 2014 we helped over 500 people in three days.

“Almost all of them had been being treated with some degree of disregard and disentitlement by the department. We continue to help people in similar situations on a daily basis.

“National’s welfare reforms have focused on pushing or keeping people off benefits no matter the consequences for their physical and mental health and wellbeing.

“This has meant that many of the most vulnerable people in the country are constantly harassed as a matter of everyday practice.

“The stress is often unbearable, and it is nonsensical for the Minister Anne Tolley and John Key to pretend otherwise.

“It’s high time we had a serious review of welfare policy and practice. The current departmental culture hurts all involved. It’s way past time for a change.”

ends

Source: Scoop Media

(see the above link for the original report)

 
 

ADDENDUM 2: 28 APRIL 2015:

 

GROWING CONCERNS ABOUT THE INDEPENDENCE OF SCIENCE AND RESEARCH

Developments in the ever changing world of Science, where government and private enterprises appear to bring in certain expectations into what scientists research and report give rise to major concern. “Science by cheque-book” does appear to become the modern day science policy pursued by governments and private enterprises, who are keen to get the “science” and results that suit them. It comes in sneakily through the backdoor, and it has already become more of the “normal” in many overseas countries (particularly the USA and UK), and it is coming here too. There was an interesting interview on ‘Nine to Noon’ on ‘Radio NZ National’ on 10 April 2015, where Kathryn Ryan spoke with Nicola Gaston, President of the Association of Scientists. She and many of her colleagues are very worried about what is happening in the science and research departments, funded by government and/or private enterprise. We also hear more and more about public private partnership (PPPs), and it seems that is becoming the norm in science.

What it means is, we get science that is deemed to be “useful”, and less science that is truly independent. Also are scientists more often given the message, that they better hold back with their expert opinions, where it may not be so welcome.

Anyway, that is exactly what UNUM was doing, when they went into partnership with the UK government and a Department at the University of Cardiff, to fund the ‘UNUM Provident Centre for Psychosocial and Disability Research’, headed by our well known “expert” professor, Mansel Aylward. “Science on order”, some will cynically say, to serve the DWP and UK government, to achieve more welfare cuts and cost savings, by declaring more persons “fit” for some forms of work, no matter whether there would be any realistic prospects to get truly suitable, lasting and sufficiently paid jobs on the market.

Sadly they have achieved some of their goals, and even managed to bring their “science” into NZ, where former Social Development Minister Paula Bennett and Finance Minister Bill English happily welcomed supposed new “findings” with their open arms.

Here is the RNZ audio recording of the mentioned interview, found via this link:

“Scientists speak out about fears of attacks on freedom”

http://www.radionz.co.nz/national/programmes/ninetonoon/audio/20174224/scientists-speak-out-about-fears-of-attacks-on-freedom

And here is a good summary of what UNUM was involved in in the UK, for years, playing their role in “welfare reforms”, at least giving “advice” on it:

“A Tale of two Models: Disabled People vs Unum, Atos, Government and Disability Charities :Debbie Jolly”

http://dpac.uk.net/2012/04/a-tale-of-two-models-disabled-people-vs-unum-atos-government-and-disability-charities-debbie-jolly/

And while the reforms took place, UNUM did there – supposedly by “pure coincidence” – bring new insurance products onto the market, hoping that more people would insure themselves privately, as reliance on state support would in future be discourage!

These forces – such as UNUM and other vested interest parties, they are hard to beat, as they have immense funding to their avail, and a lot of “allies” all over the place. I am saddened that there is not more awareness out there, of what is really going on. But then, we know, it is not encouraged to inform oneself about it. As we can more often observe, even the media are becoming more “mindful” of what they report and what not, and they seem to be somehow complicit in spreading the propaganda for selectively conducted, interpreted and used science.

I fear Mansel Aylward et al at the ‘Centre for Psychosicial and Disability Research‘ and their work and efforts were just the beginning. What would true and genuinely independent science say about it? We many never know, as true science appears to be stifled.

 

1 Comment

THE DISCREDITED, INDEFENSIBLE WORK CAPABILITY ASSESSMENT (WCA) IN THE UK, AND WHAT ITS DEMISE MUST MEAN FOR NZ WELFARE REFORMS, PART 1


THE DISCREDITED, INDEFENSIBLE WORK CAPABILITY ASSESSMENT (WCA), RESPONSIBLE FOR ENDLESS HARASSMENT OF SICK AND DISABLED IN THE UK, AND WHAT ITS DEMISE MUST MEAN FOR NEW ZEALAND WELFARE REFORMS

 

Contents:

A). INTRODUCTION – THE WORK CAPABILITY ASSESSMENT (WCA)
B). THE WORK CAPABILITY ASSESSMENT HANDBOOK FOR HCPs
C). THE ASSESSMENT PROVIDER ATOS AND THE NEW PROVIDER MAXIMUS
D). INTERPRETATION OF ‘DECISION MAKER’ AT DWP
E) THE 5TH AND FINAL REVIEW OF THE WORK CAPABILITY ASSESSMENT
F). CONCLUSIONS AND COMMENTS ON THE ‘INDEPENDENT REVIEW OF THE WCA – YEAR FIVE’, AND THE ONES BEFORE
G). DR LITCHFIELD’S SUPERFICIAL IMPRESSION OF NEW ZEALAND’S WORK CAPABILITY ASSESSMENTS AND WELFARE REFORMS, AS REFERRED TO IN HIS FINAL ‘INDEPENDENT REVIEW’ OF THE WCA
H). THE WCA REVIEWER DR LITCHFIELD AND HIS LINKS TO ‘FIT FOR WORK’
I). OTHER INFORMATION ABOUT DR LITCHFIELD, HIS BACKGROUND AND WORK
J). CRITICISM OF THE WCA FROM THE UK MEDICAL PROFESSION
K). INFORMATION ABOUT THE WCA, CRITICISM OF IT AND THE DWP – BY SUPPORT GROUPS, A TRIBUNAL UNIT AND THE MEDIA
L). THE MAN AND MIND BEHIND THE ‘ALL WORK TEST’, THE ‘PERSONAL CAPABILITY ASSESSMENT’ – AND CONTRIBUTOR TO THE ‘WCA’
M). AYLWARD, WADDELL ET AL, ALL WORKING ON THE SAME AGENDA
N). FORMS OF WORK CAPABILITY ASSESSMENTS IN USE IN NEW ZEALAND
O). THE CONCLUSIONS THAT NEW ZEALANDERS SHOULD DRAW FROM THE DISASTROUS WELFARE REFORMS IN THE UK, WHERE THE FLAWED AND HARSH APPROACHES HAVE NOT DELIVERED, AND WHERE THE WCA IS NOW DISCREDITED
P). APPENDIX

 

A) INTRODUCTION – THE WORK CAPABILITY ASSESSMENT (WCA)

It was only weeks before Christmas last year, when in November 2014 the Department of Work and Pensions (DWP) in the United Kingdom (UK) published the fifth and last ‘Independent Review of the Work Capability Assessment’. The Reviewer who conducted his second review of the highly controversial, now widely discredited Work Capability Assessment (WCA), was Dr Paul Litchfield, who is a member of the so-called ‘Fit For Work Coalition’, and who has been Chief Medical Officer for ‘BT Group plc’ (British Telecom) for over 14 years. On his ‘LinkedIn’ profile he is quoted as having a main professional interest in occupational mental health. Dr Litchfield did also conduct the fourth review of the same WCA a year earlier. In the 5th and final review he is described as an occupational physician. Following his predecessor Professor Malcolm Harrington, he was clearly a different kind of appointment as a professional with an established “corporate” business background. Dr Litchfield’s involvement with ‘Fit For Work’ and BT drew criticism from some stake holders and in the public, but he also received more favourable consideration by other stake holders.

The WCA was introduced during 2008 following the passing of the Welfare Reform Act 2007. The functional kind of assessment was intended to help determine eligibility to the Employment Support Allowance (ESA), and it is a further development from earlier assessments that were used to establish the functional and work capability of sick and incapacitated. The WCA has received strong criticism from the time of its inception. A key role in the development and evaluation of the UK’s medical assessments was played by Professor Mansel Aylward, now Director at the so-called ‘Centre for Psychosocial and Disability Research’, a special Department at Cardiff University In Wales. He did for many years also work closely with ‘UnumProvident’, a major health and disability insurer, who did during his former role as Chief Medical Adviser at the DWP also have significant input into welfare reforms in the UK. Mansel Aylward terminated his role at the DWP in 2005, and did from already 2004 head “research” at the mentioned Centre at Cardiff, which was for years being “sponsored” by UnumProvident. It was Dr Aylward who once created the stringent so-called ‘All Work Test’. He was also heavily involved in development of the equally controversial ‘Personal Capability Assessment’ (PCA), both of which preceded the further developed WCA. It can be said, that Professor Mansel Aylward had significant input into the development of all UK work capability assessments, indirectly also into the now used WCA.

Professor Aylward did furthermore lead the Corporate Medical Group on the UK Government’s Welfare Reform initiatives, and made a major “contribution” in establishing the new postgraduate diploma for doctors in Disability Assessment Medicine. Hence he has over many years represented a strong influence on the way welfare reforms affecting sick, impaired and thus disabled persons were formulated and implemented in the UK. Mansel Aylward has over the years written and co-authored a number of publications, many based on studying and interpreting statistical and other reports, some of which have been questioned in regards to their actual medical scientific value and reliability. He has been accused of re-interpreting the so-called “biopsychosocial model” for diagnosis and treatment.

The WCA itself was introduced as a means to apply a new approach and focus in the way persons with chronic, serious health conditions, and with longer term, or permanent, physical and mental impairments, would be assessed for their capability to perform certain functional activities. With that came also the presumption that the same assessment could determine who could potentially and hypothetically perform various work related types of activities. The assessment is presented and administered by the DWP, and the Department expects the contracted assessment ‘Provider’ (until March 2015 still ‘Atos Healthcare’), to follow, use and apply it, while conducting interviews and examinations of DWP clients that are referred to them. The assessor employs approved Health Care Professionals (HCPs) who conduct the commonly called “fit for work” tests. They are expected to adhere to the guidelines set out in a ‘Revised WCA Handbook’ (the most current one appears to be Version 6, from 19 March 2013), and to act as so-called “Specialist Disability Analysts”, which is a different role to the one ordinary health care professionals perform in diagnosis and treatment.

At the initial stage a kind of assessment is conducted on paper during a “Filework” stage, usually based on a Med 3 certificate (“Fit note”) from a claimant’s general practitioner (GP). If a face to face assessment is required, clients will first be sent a self assessment form called ESA 50 (‘Limited Capability for Work Questionnaire’), or in some cases an ESA 50A form, to fill out. They may be asked to provide further medical certificates and other relevant records. “Medical” assessments under the WCA are supposed to determine whether a person has a limited capability for work, or even a limited capability for work related activity, or whether there is after all a full capability to perform work. Depending on a points score based on relevant descriptors for both physical and mental function abilities, a person will as a result of the WCA be either put into the ‘Support Group’ (for those with severe functional limitation, or with special circumstances), or into the ‘Work Related Activity Group’ (WRAG) (for those less severely incapacitated). If persons may after all be found “fit for work”, they will be put into the category of ordinary jobseekers, and will have to apply for the ‘Jobseeker’s Allowance’ (JSA). This is though not decided upon by the HCP at Atos, or the soon to follow new assessor, but by a so-called ‘Decision Maker’ (DM) at the DWP. The HCP of the assessment Provider (presently Atos) will send a functional assessment report called ESA 85 to the DM to base their decision on. Legally the HCP acts only as an “advisor”. On page 60 (see 3.1.6, second section) of the ‘Revised WCA Handbook’ (fr. 19 March 2013) it states that the Decision Makers are not medically qualified! On the bottom of page 60 (3.1.6.1) it also says: the use of medical terminology should be avoided. This raises concerns about how cases are decided on, where complex medical conditions exist.

As mentioned, the WCA is initially done on paper, and if a face to face assessment is considered necessary, the HCP will notify DWP, or rather the Jobcentre Plus Office of this, who will then make arrangements for a referral of the “claimant” to attend an examination centre. At the actual assessment a specially structured interview will be conducted, aimed at establishing the physical and mental functional capabilities – rather than the disabilities of a person. The HCP of the assessor (Atos) is instructed to first read all presented medical records and other relevant documents, and will then conduct an “effective” interview, during which she/he is expected to also “listen between the lines”. This is generally followed by a physical examination. As there are usually set time limits for the assessment, this places pressures on HCP staff. While HCPs have to record all medical conditions and a concise medical history, the whole examination or assessment is in its form only marginally “medical”. A strong focus is put on the “social and occupational history” and “the typical day” of a “customer”. The assessing HCP is also instructed to carefully “observe” the behaviour of the person they interview and examine. On page 112 of the ‘Revised WCA Handbook’ (under 3.5.1) the HCP is advised: The HCP must have a high level of suspicion about the presence of any mental function issue and must carefully explore mental health symptoms that may be overtly “provided” by the claimant! At least 15 points need to be scored during such a WCA for the claimant and “customer” to meet the “limited capability for work” criteria for ESA. To qualify for the Support Group a claimant must be severely incapacitated, e.g. score at least one of the highest points (15) scoring descriptors for 16 “activities” (see Appendix 1 from page 150 in the WCA Handbook). Only those meeting Support Group criteria will be exempted from work expectations. Those who only meet the criteria for “limited capability for work” will by the DM at DWP be put into the Work Related Activity Group, which usually means there are conditional work expectations.

While the WCA was initially only meant to be applied to new applicants for – and claimants of – the newly established ESA benefits, the DWP did in 2010 decide and announce that they would from 2011 onwards also re-assess virtually all existing Incapacity Benefit (IB) recipients (about 2.5 million). This made it abundantly clear that the new approach to test “work capability” was not simply a new measure for new beneficiaries, it was intended to fundamentally and generally shift the goal posts in relation to medical and work capability assessments and with that for benefit eligibility. Without doubt the aim was to reduce benefit entitlements by substantially tightening the criteria for being accepted as incapacitated to perform work. The draconian nature of the WCA (same as its predecessors) should lead to hundreds of thousands of formerly considered “disabled” to lose that status, and to be re-categorised as being “fit for work”, no matter whether there was any realistic chance of them finding real jobs, let alone perform and keep such employment on the open market.

Since its introduction the WCA has experienced a number of changes, because it was found to give insufficient considerations to mental health sufferers, because some descriptors for limitations on activities lacked sufficient clarity, because the DWP decided to review certain provisions themselves, because annual reviews suggested improvements, and because substantial public criticism and pressure (particularly from disability advocacy and support groups, but also the British Medical Association and other stakeholders) forced the government to further amend Regulations and change processes. See ‘Appendix 1’‘The Support Group Descriptors’ (from page 150 onwards, in the ‘Revised WCA Handbook’ issue 2013) for details how tightly the criteria has been set for activities and descriptors in use. But all these changes, mostly brought in very reluctantly, did not abolish or replace the excessively strict and tight criteria used by way of descriptors within the WCA itself. Most changes only affected parts of the WCA processes. The DWP and UK governments insisted on continuing with using the WCA to achieve the originally stated and sought outcomes, which in hindsight though appear to provide remarkably little true and effective “assistance” for the affected, to enable them to access and maintain sustainable employment.

While the WCA is used only in the United Kingdom, the underlying changes in approaches towards medical and work capability assessments, brought about by a well known group of certain key “experts”, and suggested and supported also by a vested interests holding health and disability insurer by the name of UnumProvident, who had effective influence on political decision-makers, have over recent years also played a significant role in shaping welfare reforms in New Zealand. Some of these “experts”, such as Professor Mansel Aylward, even visited government officials, professional medical organisation leaders, and lobbied strongly for the adoption of similar approaches and processes in Australia and New Zealand. It is this evident cooperation between “advisors” in the UK and like minded “experts” and “decision makers” here in New Zealand and Australia, which should be of concern, as with the WCA having lost all credibility and justification, the “experts” that developed and promoted it, deserve to come under intense scrutiny, same as their “research” and claimed “findings”.

Reference – Wikipedia: The ‘Work Capability Assessment’ (WCA)
http://en.wikipedia.org/wiki/Work_Capability_Assessment

 

 

B). THE WORK CAPABILITY ASSESSMENT HANDBOOK FOR HCPs

The DWP has for the purpose of ‘Training and Development’ of Health Care Professionals (HCPs), that are employed or commissioned by the Provider (so far Atos Healthcare) of contracted assessment services, published a handbook. An updated version is called the ‘Revised WCA Handbook’, dated 19 March 2013. It contains important and essential guidelines for the HCPs when conducting assessments, and also shows on what information and processes the DWP Decision Makers rely and base their decisions on claimants’ benefit entitlements on. It contains the list of activities and descriptors that qualify a person for the so-called ‘Support Group’ under the ESA, where persons are exempted from work expectations. Going through the 16 “activities” reveals that the criteria to meet is set extremely tightly, it is draconian, harsh and unreasonable. The handbook is found on the internet and can be downloaded as a PDF. Look up the following links/websites for details:

‘Department for Work and Pensions’:
https://www.gov.uk/government/publications/work-capability-assessment-handbook-for-healthcare-professionals

Link to the down-loadable revised, 6th and final version of the ‘Hand Book’ for health care professionals authorised to conduct WCA assessments (from 2013):
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/252637/wca-handbook.pdf

On page 11 it states the following:

“The handbook provides guidance on Employment and Support Allowance procedures and also recognises that these form the foundation of experience to progress to the generation of Evidence Based reports utilising the LiMA application. This handbook will make considerable reference to the LiMA application throughout as all ESA reports will be completed using the LiMA application except in exceptional circumstances. Much of the work carried out by Atos Healthcare, including ESA and DLA, is completed using the LIMA system. LiMA (Logic Integrated Medical Assessment) is an evidence based computer programme which allows the practitioner to document evidence gathering and supports the evaluation of data and provision of advice on levels of disability using logic based on evidence based medicine protocols. We will also use this system to provide advice for decision makers for Revised WCA assessments.“

On page 21 it says under ‘1.6 The role of the Atos Healthcare HCP’:

“In carrying out this function, ESA approved HCPs act as specialist disability analysts. The role of the disability analyst is different from the more familiar clinical role of reaching a diagnosis and arranging treatment. For the disability analyst, a precise diagnosis is of secondary importance. The primary function is to make an assessment of how a person’s day to day life is affected by disability, and to relate this to the legislative requirements.“

On page 46 under ‘3.1 The Medical Assessment’ it states:

 

The medical assessment process as a whole differs in many respects from traditional history taking and examination as carried out in the general practice and hospital setting. It entails bringing together information gained from questionnaires, history, observation, medical evidence and examination in order to reach an accurate assessment of the disability of a claimant and so to provide the information and the opinion which the Decision Maker requires. It is a complex procedure, involving careful consideration of history, observed behaviour, examination, logical reasoning and justification of advice.”

The revised Handbook reveals that there have over the last few years only really been some moderate “improvements” to the ‘WCA’ since its introduction. Activities that are looked at to assess work capability are still set at very basic and restrictive levels, same as the descriptors used to tightly classify the level of incapacity. The criteria applied to assess functional capabilities or lack thereof remains extremely rigid, so that only very serious, long lasting, permanent or terminal disease, illness and physical or mental impairments will be viewed as causing sufficient degrees of disability, so that persons will be categorised as having only “limited capability for work”, or “limited capability for work related activities”.

There is still insufficient consideration for people with complex mental health conditions, or with various comorbidities (physical, mental and psychological), and especially for those with fluctuating conditions. Simply using this points system, does not allow for sufficient recognition of complex medical and psycho-social aspects that may be covered by the WCA in its only slightly altered form. It is also of concern that a face to face interview, a physical and possible other examination, in a limited time frame, will likely miss important aspects and details to consider, despite of the assessors being expected to carefully look at all documented medical records. Observation may offer some insights worth noting, but it seems irresponsible, to reduce any input by a client’s own medical practitioner and/or specialist, by using a largely functional assessment, that only has a marginal focus on the still important medical side of things. The assessments also totally ignores the realistic chances any person assessed as “fit for work” under the “limited capability for work” category may have to obtain paid employment on the open market. When “manual dexterity” is being assessed based on the question, whether a person can push a button, turn pages of a book, or to some humble degree perhaps use a mouse or even keyboard, or when a person’s “mobility” is assessed based on the question whether she/he is able to move (with or without an aid) 50, 100 or 200 metres without any interruption, or when a person may not be able to move between two seated positions without assistance, then this does in my view tell me nothing convincing, that this is a form of assessment useful to establish actual work ability on the existing employment market. But a person able to do the mentioned, or to lift a half litre carton of milk, would be considered to have a “limited capability for work”.

The same applies to questions how a person is coping with a “typical” day’s activities, which are again designed to look at whether a person can only perform extremely basic level activities to qualify for referral to the ‘Support Group’. Within a well equipped and familiar home a person may be able to cope relatively well with doing basic chores, but that will again mean very little in regards to how such a person would cope in a work place, like an office, a work-shop, at an assembly line, at a customer service point or whatsoever.

The assessment remains overly focused on claimants having to “prove” their disability, and appears to only have the aim to single out the extremely, most impaired and disabled from the perhaps more moderately impaired and disabled, in order to reduce benefit entitlements, and thus save the DWP and UK government COSTS. As those considered fit for some work will have expectations placed on them, or otherwise face lower benefits, it is the logical conclusion that the purpose behind this exercise is to reduce claims and costs, although the whole exercise has by now proved to be an abject failure. The WCA does nothing to bring about social and environmental changes, like such that employers would be expected to cooperate, same as society as a whole, to change their attitude towards, and the treatment of those with serious sickness and physical, mental and psychological disabilities. Simply replacing “sick notes” with “fit notes”, changing the official focus from “disability” to “capability” does not create more suitable jobs, better employment and pay conditions for the people that are supposed to be supported. Such are ideologically driven, cosmetic and bureaucratic changes that have not delivered the outcomes they were meant to deliver.

I recommend that readers have a thorough read of the ‘Revised Hand Book’ to get a grip of what this WCA is all about, when applied in practice! It will open the eyes of those that have little knowledge of what the WCA and applied processes actually mean and look like.

 

C). THE ASSESSMENT PROVIDER ATOS AND THE NEW PROVIDER MAXIMUS

For years now the DWP has worked with the contracted Provider Atos Healthcare to use and apply the WCA in assessments of new, potential and existing claimants of benefits, while gradually phasing in the ESA. Atos Healthcare has gained an appalling reputation, but while some serious failures can rightly be blamed on that Provider, it must also be accepted, that Atos has generally only been doing the job for the DWP, as the law and processes expect them to. The ultimate responsibility for major failures in applying the seriously flawed WCA should lie with the DWP and UK governments. Nevertheless, Atos deserves to be looked at and to also be criticised for delivering unconvincing, poor services that cost some persons their remaining well-being, yes their lives. It should not surprise any informed persons that Atos decided to opt out early from a long term contract with the DWP, given the total loss of faith in their delivery. The following contains essential, revealing information about Atos Healthcare, still the Provider of WCA assessment services in the UK:

ATOS Healthcare, the provider that asked for an early exit from a contract with DWP:
Their corporate website:
http://www.atoshealthcare.com/

They state rather clearly on their website:

ESA Claimants

“Atos Healthcare carries out disability assessments on behalf of the Department for Work and Pensions (DWP). If you are claiming benefits as a result of a disability or injury, you may be required by the DWP to have an assessment with a qualified health care professional as part of your claim process. Atos Healthcare conducts disability assessments, using criteria set out by government, and provides the DWP with independent advice which is used by a DWP Decision Maker, along with any other information they have received, to decide on your entitlement to benefit. These benefits include: Employment Support Allowance, Disability Living Allowance, and Industrial Injuries Disablement Benefit. We also conduct assessments for Veterans UK.”

They also stress:

‘We do not decide your entitlement’

“We cannot give you advice or provide an opinion on the outcome of your claim. Our role is to carry out an assessment and provide this to the DWP in the form of a report. The DWP Decision Maker may use other information when considering your entitlement to benefit. We are not usually informed of the outcome of individual decisions and we have no targets related to decisions made.”

See: http://www.atoshealthcare.com/claimants

They also make clear:

‘What to expect’

“The assessment is not like a medical examination you may have with your GP or at a hospital which is to diagnose your condition and treat it. The assessment carried out by Atos Healthcare is focused on how you are affected by your physical and/or mental health condition in daily life; this is called a functional assessment. The healthcare professional will be interested in what you are able to do and how you do it, whether your condition varies daily, or over a period of time, and how this affects your ability to undertake the tasks of daily living.”

See: http://www.atoshealthcare.com/claimants/before_your_assessment

 

With Atos having sought an early termination of their contract as assessor, the DWP not long ago announced a new contract with a new Provider, who is though by many considered to be equally ill suited to deliver better outcomes, that is at least by the affected and their representative disability support groups. It is questionable, whether any other private sector Provider such as ‘MAXIMUS UK’ will perform at a higher and better level than Atos, as they will have their hands tied with a contract paying them a set amount for service delivery, out of which they will of course also wish to make a sound profit.

What we have had now for decades, is the replacement of once perceived “over bureaucratic” state service delivery agencies or departments, with corporate business service providers, who are generally providing the same services, with admittedly some variations here and there. But with a profit margin needing to be met by private, or public shareholder owned corporate businesses, there will be limits to what can be delivered, and as history has shown in many cases in Europe and elsewhere, a tendency to streamlining, rationing, using of short-cuts and other “cost effective” measures, will often also compromise the quality of services being delivered, no matter how well the intentions behind outsourcing.

 

See the following information on MAXIMUS UK:

MAXIMUS UK – the newly contracted service provider to work with the WCA:
https://www.maximusuk.co.uk/health-programmes/independent-health-assessments

Own concluding comments on MAXIMUS:

This US originated corporate style business does on their website unsurprisingly present many “simple” and “positive” short messages, accompanied by glossy visual imagery. They reveal only little in detail – or of substance – of what they will actually offer. They claim to provide both speedy, automated system based assessments, same as reviews, reconsiderations and appeals. This sounds bizarre, as one would expect that reviews and appeals would ultimately be handled by an independent outside body, not the provider of the assessments. This raises questions about fairness and transparency.

We get “packaged” services that require human input that will cost, and like with any outsourced providers, they will have to make their calculations how much of their resources can actually be put into each client and the staff that are supposed to “serve” and “assist” them. I do not see how such services can and will do a better, more effective and more successful job in putting sick and disabled into jobs, that in most cases already the fitter and healthier workers compete for. To bear in mind also is the fact, that the WCA will be the same test that Atos Healthcare was expected to work with, and that MAXIMUS will have to work with. Using the same “test” for “work capability” means little of substance will change, and outcomes are not likely to be much different to what Atos delivered.

The DWP will of course have set a budget under a contract that includes clear outcome and target expectations when negotiating and agreeing with MAXIMUS.

Rationing of limited, available resources for the delivery of lar