Archive for category MSD – Official Information Act releases

SOCIAL SECURITY BENEFIT RATES IN NEW ZEALAND –SET AT WILL BY GOVERNMENTS, IGNORING SOCIO-ECONOMIC REALITIES AND EVIDENCE


SOCIAL SECURITY BENEFIT RATES IN NEW ZEALAND –SET AT WILL BY GOVERNMENTS, IGNORING SOCIO-ECONOMIC REALITIES AND EVIDENCE

 

Published 23 May 2018

 
 

CONTENTS:

A) INTRODUCTION
B) OIA REQUESTS MADE TO MSD ON 8 JULY 2015
C) THE MINISTRY OF SOCIAL DEVELOPMENT’S (MSD’s) FIRST FORMAL RESPONSE TO THE REQUESTS, DATED 19 NOV. 2015
D) OMBUDSMAN COMPLAINTS OF 1 AND 22 NOV. 2015
E) MSD’s FURTHER RESPONSE OF 9 MARCH 2018
F) ANALYSIS OF THE INFORMATION PROVIDED BY MSD
G) CONCLUSION

 
 

A) INTRODUCTION

After we already presented some interesting information made available by the Ministry of Social Development (MSD) in response to various Official Information Act (OIA) requests on earlier occasions, we can now present you more, some of which will be of significant interest to readers.

In the early hours on 9 July 2015 two new formal OIA requests, both dated 8 July 2015, were sent in to MSD by a requester by email, with 2 attached letters. The first request was rather straight-forward and simply asked for a breakdown of three types of benefits into components that should cover certain essential living costs. The second request was a bit more complex and specific, and it asked for some comprehensive information on a range of topics and areas. That request did for instance ask for expert advisors’ reports on health, disability and work-ability assessment matters that may have been used by the government in the process of preparing and formulating policy brought in as welfare reforms. Reports from external and internal advisors were asked for, same as copies of correspondence between MSD’s Principal Health Advisor Dr Bratt and the UK ‘expert’ advisor Mansel Aylward, and others, at the ‘Centre for Psychosocial and Disability Research’ in Cardiff, Wales. Some other information asked for included conflict of interest declarations by members of a Health and Disability Panel that was set up to consult on welfare reforms, same as conflict of interest declarations by MSD’s Principal Health and Disability Advisors. Further 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 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 programs, same as on commissioned ‘Work Ability Assessments’ and ‘Specialist Assessments’. This post does though mainly focus on the first request and its responses.

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 OIA. He did not expect a response to the second request letter 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 most likely also require a fair bit of collation of information.

Hence it was not surprising to the requester that he did on 3 August 2015 receive an email from MSD (their ‘Official and Parliamentary Information team’), advising that the Ministry would need an extension of time to respond to the OIA requests. There was no separate early response to the first OIA request, and so it appeared as if it would be processed together with the second request. A PDF containing 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 2015 MSD had 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 3 September 2015 receive another email from MSD, updating him 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 8 October 2015 the requester had still not received the information that was supposedly being prepared with urgency; hence he did on that same day send 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 his 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 he also wrote that 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 that he received upon that email was yet another email with yet another apology from MSD, signed by a ‘Ministerial & Executive Services Advisor’ (with no name). The email informed him 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, it also said.

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 formal response by MSD (to both OIA requests) was received by the requester (by email with an attachment).

In the following we will present you the requests or questions for the particular specified information the requester had asked for, and following that the responses given by MSD. As the response was initially delayed, and as some information was simply not provided with MSD’s formal response (some of that again without giving any reasons), the requester was (like on earlier occasions) forced to file complaints with the Office of Ombudsmen, dated 1 and 22 Nov. 2015. He asked to have the responses by MSD investigated and reviewed. He sought the Ombudsman’s intervention, in order to obtain the remaining information from MSD, and to have the Ministry provide proper answers to the questions that had not been properly replied to. We will also present you those letters, and specify and outline the information that MSD withheld and refused. It took the Office of Ombudsmen over two years to investigate the issues with MSD’s OIA response, as complained about in relation to the first OIA request. And it took MSD two and a half years to provide further explanations on 9 March 2018. As usual some comments will be made regarding the questions put and the answers received, and what conclusions can be drawn from the provided, rather general and limited information.

 
 

B) OIA REQUESTS MADE TO MSD ON 8 JULY 2015

In the following we present the particular questions contained in the first OIA request, which the requester asked MSD to answer and to provide information on (dated 8 July 2015):

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, sent to MSD by email in the early hours on 9 July 2015:
MSD, O.I.A. request, to C.E. of M.S.D., base benefit break down, anon, 08.07.15

 

Comments by the author

For decades New Zealanders on benefits have had to struggle and cope on their meagre incomes, while receiving main or base benefits that are for many people not enough to survive on. Only those choosing to live in cramped conditions in shared homes may in some cases manage to get by on the main benefit alone. The vast majority of beneficiaries do require top-ups of benefits, for accommodation and disability related costs, and for various other essential living expenses, in order to survive on a shoestring budget – or less. Additional supplements and allowances, including also the ‘Temporary Additional Support’ (in short TAS, which replaced the former Special Benefit) are often capped or have set maximum limits. But the particular rates – or claimable amounts – for these are known. The main benefits, although insufficient to really cover all essential living expenses, should by a person’s reasonable presumption have been calculated following some kind of a formula, to cover a range of very basic standard costs per person, and that is what the requester wanted to get details on.

 

In the following, and for your interest, we present a PDF with an authentic, partly redacted copy of the second and more comprehensive OIA request of 8 July 2015, containing 21 further questions (or points of request) that were also sent to MSD to respond to:
MSD, O.I.A. request, to C.E. of MSD, Bratt, H+D Panel, Reforms, anon, 08.07.15

We will not go into detail about this second request, as this post will focus on the first and shorter OIA request for information on benefit components, or parts of benefits, that one would presume should cover particular living cost items every ordinary person would have to meet (at a bare minimum).

 
 

C) THE MINISTRY OF SOCIAL DEVELOPMENT’S (MSD’s) FIRST FORMAL RESPONSE TO THE REQUESTS, DATED 19 NOV. 2015

As a very first response, MSD wrote back to the requester by email at about 12.52h and 13.59h on 9 July 2015, sending two virtually identical standard email confirmations for the receipt of the requests, which had been referred to the “appropriate officials at National office to respond”. A response to the OIA requests was indicated to follow “as soon as possible”.

AT 13.23h on 28 July 2015 the requester received another email from MSD, with an attached PDF letter, informing him that one request point from his comprehensive OIA request had been referred to the Ministry of Health for a response.

This was followed by yet another email letter sent at about 16.17h on 3 August 2015, which had a separate PDF with a formal letter attached. The letter explained that the Ministry needed to extend the time for responding to the OIA request, and it informed the requester that the Ministry would respond to his request by no later than 3 September 2015. For a reason, a mention was made of the “large quantity of information” that the requester had asked for.

But at about 14.39h on 3 Sept. 2015, a person at the Ministry wrote back to the requester, informing him by way of an update, that they could not provide a response with the asked for information to his two requests ‘today’. An unnamed person identified only as ‘Ministerial + Executive Services Advisor’ wrote that the Ministry was currently processing the request with urgency, and that they would respond as soon as possible.

In the early hours on 8 October 2015 the OIA requester wrote back to MSD, referring to the email received on 3 Aug. 2015 (with an attached PDF containing a letter), which had informed him that he could expect a response to his information request no later than 3 Sept. 2015. The requester wrote that it was about two months since he had made his request, and that he had last been informed that the matter would be dealt with under urgency.

He wrote that three months had now passed, and while he showed an understanding for the response requiring some time, he asked for a clear indication as to when he could expect a response. He asked whether it would take another two weeks, or perhaps a month, but expressed his expectation for a response no later than by the end of that month, as otherwise he would need to bring the matter to the attention of the Ombudsmen.

At 08.14h on that same day (8 Oct. 2015) the requester received another email from a person at the Ministry, again only identifiable as ‘Ministerial + Executive Services Advisor’. The unnamed person now wrote that the response was ‘currently under review’, and that it was expected to be “signed out within the next couple of days”. The response would be with him by the end of the month if not sooner, the MSD Advisor wrote.

Only at 10.55h on 19 November 2015 would the OIA requester finally receive an email from MSD, with the attached response (contained in a PDF file, consisting of a six page letter and 3 pages of attachments). That was over four moths after his request!

 

Here we can now present the response with the answers that were received from MSD by email and attached letter on 19 November 2015. The partly redacted transcript of MSD’s response, from the letter received, and quoted below, relates to the first OIA request with three questions:

“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.”

The full response letter was signed by Carl Crafar, Deputy Chief Executive for Service Delivery.

 

Answers to questions 1 to 21 of the second OIA request dated 8 July 2015 have not been included in this transcript, as this post is about the responses sought to questions about benefit components that should cover living costs of beneficiaries. You can look up the whole response, contained in a PDF containing a scan copy of the letter by MSD dated 19 Nov. 2015 for those details.

Please find under these two links an anonymised scan copy of MSD’s OIA response of 19 Nov. 2015, one “clean” copy, and an extra one, that has highlighted text parts (and some notes):
MSD, OIA rqst, Advisors, MHES, SPES, WAA, reports, WINZ, reply, anon, 19.11.15
MSD, OIA rqst to C.E., Dr Bratt, H+D Panel, MHES, SPES, WAA, reports, 08.07., reply, hi-lit, 19.11.15

Here is also a scan copy of the Ministry of Health’s response to request/question nr. 17, contained in the second OIA request letter of 8 July 2015:
Min. of Health, OIA rqst, transfered by MSD, social bonds, acknowledgmt, 28.07.15
Min. of Health, Dep. Dir.-Gen., OIA rqst, social bonds, transfered fr. MSD, reply, 25.08.15

 

An earlier post covering the whole OIA request, MSD’s first responses, and the requester’s Ombudsmen Office complaint was published on this Blog on 27 Nov. 2015, under the title:
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.

It can be found by clicking this following hyperlink:
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/
And here is the newest, updated and current PDF version (as on 10.04.18):
MSD’s Selective + Poor Responses To New OIA Requests, Post, NZSJB, upd., 27.11.15

 
 

D) OMBUDSMAN COMPLAINTS OF 1 AND 22 NOV. 2015

Given the fact that MSD did not provide the asked for information within the stipulated time frame of 20 working days, and then also not within the time they had indicated after seeking an extension of time to respond (by email on 3 August 2015), the OIA requester had by 1 Nov. 2015 again seen a need to file a formal complaint with the Office of Ombudsmen.

By way of a letter dated 1 Nov. 2015, the OIA requester – turned complainant – raised his concerns that MSD had failed to respond to his request, despite of having announced earlier on 8 October 2015, that a response was ready for sign off and due to be sent out in days. He presented a copy of that email, which he had received on 8 October, and also copies of earlier email correspondence with MSD that occurred between 9 July and 8 October 2015.

A PDF file with the authentic text of that letter by the complainant, dated 1 Nov. 2015, partly redacted for privacy reasons, can be found via the following hyperlinks:
Ombudsman, complaint, MSD, failure to comply with OIA rqst fr. 08.07.15, anon, 01.11.2015

That complaint would at first be treated like a mere ‘delay complaint’, but after finally receiving the response by MSD, dated 19 Nov. 2015, the OIA requester and complainant would later file a more comprehensive, formal complaint with the Ombudsmen, raising his concerns about, and objections to, the OIA response – by way of another letter (sent in by email), dated 22 November 2015.

But prior to that, he would receive a first standard-type email response from the Office of Ombudsmen, dated 2 Nov. 2015, bearing no signature or name. It confirmed the receipt of his correspondence of 1 November, and he was informed that his complaint would be processed under their reference 41xxx7. Some other standard kind of information was also provided.

A PDF file containing an authentic scan copy of that email of 2 Nov. 2015, partly redacted for privacy reasons, can be found via the following links:
Ombudsman, complaint 41xxx7, MSD, OIA Rqst 08.07.15, insuff. info, 1st reply, anon, 02.11.2015
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, info ref., 1st reply, hilit, 02.11.15

On 20 Nov. 2015 the complainant received an email with an attached letter from the Ombudsmen Office, signed by Ombudsman Leo Donnelly. The same letter would also be sent to him by post, and received by him on 23 Nov. 2015. Mr Donnelly wrote on behalf of Chief Ombudsman Ron Paterson, acknowledging the complaint, and informed the complainant that they were making enquiries with the Ministry. Mr Donnelly wrote that a decision (by MSD) on the requester’s OIA requests was to be made and communicated to him in the next few weeks. If he was not satisfied with the ‘substantive’ response, he should feel free to write to Dr Paterson again, so the letter ended.

A PDF with an authentic scan copy of that letter by Leo Donnelly, partly redacted, and dated 20 Nov. 2015, can be loaded via the following links:
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, insufficient info, ltr, L. D., anon, 20.11.15
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, info ref., ltr L. D., hilit, 20.11.15

While having entered correspondence with the Ombudsmen Office, the complainant would in the meantime receive the long awaited, much overdue further correspondence from the Ministry of Social Development in the form of their formal OIA response, dated 19 November 2015.

After receiving MSD’s formal response on 19 Nov. 2015, and finding that a number of requests were not properly answered, partly due to stated OIA refusal grounds, and partly with no satisfactory explanations given, the OIA requester and complainant wrote his further second formal complaint letter to the Office of Ombudsmen, dated 22 Nov. 2015.

He referred to his earlier “delay complaint”, and explained how he had now received a response from the Ministry on 19 Nov. 2015, which was though not satisfactory, as MSD had withheld information “without giving any acceptable reasons for this”. He explained his concerns and issues with the response by separating the two requests and responses, which he had received, one from another. Regarding the first three request points relating to benefit components, he wrote that MSD had in his view failed to properly answer those three questions. He wrote in the end of his letter that he considered that he still deserved a response – or further response – in respect of his requests or ‘questions’ 1 to 3, same as to some other ones made with his second letter of 8 July 2015.

A PDF with the authentic text of the further complaint letter by the complainant, dated 22 Nov. 2015, that was sent to the Ombudsmen, can be found via the following link (partly redacted):
Ombudsman, complaint, MSD, failure to comply with OIA rqst fr. 08.07.15, anon, 22.11.15

 

This is an authentic transcript of what the complainant wrote in his complaint of 22 Nov. 2015, in relation to his first OIA request with three questions re benefit rates and what components they may contain:

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.”

The complainant would close his letter to the Ombudsman with the following comments:
“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”

 

Altogether 15 attachments and one particular hyperlink reference were sent with his complaint letter, listed at the end of it. They also included some earlier OIA responses from MSD, mostly relating to particular issues raised re the responses to his second request letter of 8 July 2015.

 

Author’s note:
When you click the hyperlink to the Studylink website that is shown in the text of the above quoted letter, you will find a page that has been changed. The information that used to be shown there is no longer to be found. Quite clearly, MSD management took some action to have their website redesigned, and they ensured that no detailed information is found on particular types of living costs they had once listed as being considered as standard living costs. All that is shown now is an overview over aspects to consider when intending to study, under the heading ‘Can you afford to study?’.

 

Further Ombudsman OIA complaint correspondence

Following that complaint letter, Deputy Ombudsman Leo Donnelly wrote back to the complainant on 21 Dec. 2015, thanking for his letter, apologising for the delay in responding, and informing him, that his complaint would be allocated to an investigator (after another assessment had already been made). The complainant would be contacted by the Manager in charge of the Investigation and Resolution Team at the Auckland Office of the Ombudsmen, when there was progress to report, so the letter said.

A PDF file containing the authentic scan copy of that letter by Leo Donnelly, and of further email correspondence in the complaint matter, can be found by clicking the following links:
Ombudsman, complaint 41xxx7, MSD, OIA Rqst 08.07.15, insuff. info, corresp., anon, 21.12.15 – 11.12.17
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, info ref., corresp., hilit, 21.12.15-11.12.17

It did regrettably take another two years for the complainant to finally see any actual ‘progress’ in the matter, which only happened after yet further correspondence (particularly between May and Dec. 2017), where the complainant asked for some updates and was on occasion provided with this.

Then, suddenly in mid January 2018, the Ombudsman’s ‘Acting Senior Investigator’ wrote back to the complainant and information requester, with a letter dated 15 January 2018. The person wrote on behalf of Chief Ombudsman Mr Boshier, and explained that he was now investigating this complaint. Apologies were made for the lengthy delays due to ‘workload pressures’. In referring to the OIA requests in question, and the complainant’s letter of 22 Nov. 2015, it was explained that ‘not all the issues raised’ constituted OIA complaints. That was though more the case with the second OIA request letter. It was acknowledged, though, that the complainant was of the view that the responses he received to his first OIA request with three questions on benefit rates as being ‘inadequate’.

The complainant was informed by the Investigator that the Ombudsmen Office had written to the Chief Executive of MSD, Mr Brendan Boyle, notifying him of the complaint. A report on MSD’s response and re the requests had been asked for, same as re the issues raised with the complaint.

A PDF with the authentic letter by that ‘Acting Senior Investigator’ and the Ombudsmen’s Office, dated 15 Jan. 2018, only partly redacted for privacy reasons, is found via these links:
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, insuff. info, upd., anon, 15.01.18
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, info ref., upd. ltr, hilit, 15.01.18

 

The Ombudsmen Office’s proposed part decision

It would take until mid March 2018, until the Ombudsmen Office would present its part decision on complaint 41xxx7. This time the Manager for Investigations and Disputes Resolution at the Auckland Office of the Ombudsmen, Mr T. Xxxxxxx, wrote himself to the complainant, on behalf of Mr Boshier. By way of his update, he confirmed that the Ministry had provided a report to the Chief Ombudsman. He also acknowledged that the Ministry had in addition to that provided the complainant with an updated explanation in response to his first OIA request.

Indeed, MSD had on 9 March 2018 sent the OIA requester another email, offering further explanations to OIA requests 1 to 3 in the first request letter of 8 July 2015. But that information was not much different to what had already been provided with the initial response of 19 Nov. 2015. The further response by MSD can be loaded via a link further below, under Part or Chapter ‘E’ in this post.

By referring to the Ministry’s initial response and advice, and to the OIA requester’s and complainant’s relevant comments in his letter of 22 Nov. 2015, the Manager at the Auckland Ombudsmen’s Office wrote the following:

“On 9 March 2018 the Ministry provided you with an updated explanation confirming that no formulae or ‘cost calculations’ are used to set benefit rates, and that instead the current rates ‘have been arrived at by a series of historical decisions’. The Ministry’s Policy Team explained that decisions on benefit rates involve balancing a number of competing objectives and issues, and provided you with a summary of those factors.

It may be that you remain concerned that the Ministry does not appear to directly refer to average costs of various essential items, such as food, electricity and clothing, when setting benefit rates. However, it is difficult to see what further information could be provided by the Ministry in response to your request for a ‘breakdown’ of benefit rates. Any concerns you may have about the policy adopted by the Ministry when setting benefit rates, or requests for further information or clarification of information already provided, should be addressed directly to the Ministry for its consideration.

Section 17(1)(f)(ii) Ombudsmen Act 1975 provides that an Ombudsman may decline to further investigate a complaint if it appears that, having regard to all circumstances of a case, and having commenced an investigation, further investigation is unnecessary.

In the circumstances it would appear that further investigation of your complaint about the Ministry’s response to your first request of 8 July 2015 is unnecessary.”

So the Chief Ombudsman appeared to have little interest in taking that matter any further, but the complainant was at least allowed to offer his further comments by Thursday 29 March 2018.

A PDF file with an authentic scan copy of that letter by the Manager in charge of Investigations and Resolution at the Auckland Office, dated 12 March 2018, partly redacted, is found here:
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, insuff. info, pt dec., anon, 12.03.18
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, info ref., pt dec., hilit, 12.03.18

 

The complainant’s further submission to the Ombudsmen Office

Continuing to be concerned about the in his view still unsatisfactory response by MSD to his information requests, the complainant wrote back in response to that letter by the Ombudsmen’s Office, presenting his largely unchanged position.

Acknowledging the email and letter by the Auckland Office’s Manager of 12 March 2018, and confirming he had received a further ‘updated explanation’ from the Ministry of Social Development, the complainant wrote that his requests of 8 July 2015 had still not been answered.

While quoting some explanations given by MSD, he repeated his sufficiently clear and specific points of request made then, and referred to the treatment of student allowances that the Ministry also granted and paid via ‘Studylink’, and what considerations were apparently made for calculating those.

He wrote also: “As you suggest in your letter of 12 March 2018, I do indeed remain concerned that the Ministry does not refer directly to average costs of essential living costs like food, electricity, clothing and so forth, which it must nevertheless consider when setting benefit rates.” “I do not for one moment believe that no calculations of whatever kind were ever made to work out benefit rates.”

He listed the objectives that MSD appears to be considering when setting benefit rates, and he wrote:
“In order to achieve just those few objectives, any government department such as MSD has to base its decisions on factual and relevant information that measures living costs an ordinary person would have to cover. And such costs are commonly and usually measured in monetary terms. Also would a government department have to work by making decisions that are evidence based, not simply grabbed out of thin air, or based on subjective views.

Furthermore, any application a beneficiary or potential beneficiary may make to MSD’s department Work and Income asks for detailed information including received income, held assets, existing living cost expenditure, and so forth – in NZ Dollar terms, in order to work out any entitlements an applicant to a benefit or supplementary allowance may have.

The ‘explanations’ given by the ‘Policy Team’ at MSD are rather general and anything but convincing, and they appear to distract from my specified requests, and I cannot accept such a response to my OIA requests, as it is completely unreasonable.

Also do I consider it unreasonable that I should request further information or seek further clarifications from MSD, as my initial request was already clear and specified enough.

I would consider that your Office must have regard to all the circumstances of the case, which includes MSD providing such an unreasonable response to me, before making any decision based on section 17(1)(f)(ii) Ombudsmen Act 1975, to decline to further investigate this matter, as in my view a further investigation is absolutely necessary.

Last not least, MSD refers to a “series of historical decisions” that current benefit rates are based on, but offers no detailed, identifiable information at all on these decisions, which is again an unreasonable refusal of information, which they do nevertheless appear to consider as being relevant enough to consider when responding to my request.

I do therefore not agree with your view that a further investigation is unnecessary, and ask you to further challenge the Chief Executive and his/her staff at the Ministry of Social Development, to present some factual, evidence based information, e.g. used living cost data representing ordinary, common average costs that ordinary benefit recipients have, which must be used when considering and setting benefit rates. MSD may rely on Statistics NZ or other sources for information, but must be expected to present or point to such information.”

A PDF file with the authentic text of the complainant’s response to the provisional part decision by the Office of Ombudsmen, dated 12 March 2018, slightly redacted, is found via this link:
Ombudsman, complaint, 41xxx7, MSD, failure to comply w. OIA rqst fr. 08.07.17, ltr, anon, 12.03.18

 

The Ombudsman’s final decision on the (first part of) the OIA complaint

But the complainant’s efforts to challenge the Ombudsmen Office to take a firmer stand towards the Chief Executive at MSD were to no avail, as the same Manager for Investigations and Resolution at the Auckland Office soon wrote back with his final decision on this aspect of the OIA requester’s complaint, which was dated 19 March 2018.

He wrote again on behalf of Chief Ombudsman Boshier, basically upholding his already announced decision of 12 March 2018. He referred also to the schedules in the Social Security Act 1964, in which benefit rates were set by Parliament, most likely based on advice by the Ministry. Those actions were outside the scope of the Chief Ombudsman’s investigation and review (authority) under the OIA, he wrote. He asserted that what the complainant had raised with his complaint was predominantly a ‘policy issue’, rather than a request for official information under the OIA.

So the Manager at the Ombudsmen Office decided that further investigation of the complainant’s complaint about the Ministry’s response to the first part of his OIA request was unnecessary, and that the Chief Ombudsman’s investigation of that matter had been discontinued.

A PDF with an authentic scan copy of that final decision by the Office of Ombudsmen, dated 19 March 2018, and with some personal details concealed, can be loaded by clicking these links:
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, insuff. info, final pt. dec., 19.03.18
Ombudsman, complaint 41xxx7, MSD, OIA rqst 08.07.15, info ref., fin. pt dec., hilit, 19.03.18

 
 

E) MSD’s FURTHER RESPONSE OF 9 MARCH 2018

As mentioned above, there was one further response provided by the Ministry by way of an email, which had been sent to the OIA requester and Ombudsmen Office complainant on 9 March 2018. This response was not all that much different to the initial response that MSD had provided on 19 Nov. 2015. But it contained some further new comments, which referred also to the schedules in the Social Security Act 1964, which contained the actual benefit rates set by Parliament.

Diane Anderson – ‘Manager Complaints Management Insights and Improvements’, at MSD wrote on 9 March 2018 (by email):

“Dear Xx Xxxxxxx

I refer to your OIA request of 08 July 2015 in which you had sought a ‘breakdown’ of the Jobseeker Support benefit, the Supported Living Payment and the Sole Parent Support benefit with reference to costs for food, clothing, accommodation, and so on.

The Ministry had previously responded that there was no legislative formula to determine benefit rates, but that the rate depends on factors such as benefit type, and whether a person is single or has dependent children.

You were of the view however that the Ministry’s response was inadequate and had laid a complaint with the Office of the Ombudsman who had asked us for a to provide more of an explanation of how benefit rates are determined.

We have consulted our Policy Team and a fuller explanation of how benefit rates are determined is given below:

Benefit rates

1 The working age benefit rates are set out in the schedules to the Social Security Act.

2 The 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 varies according to 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, within a context that includes the availability of second and third tier assistance. The current rates have been arrived at by a series of historical decisions. There is no legislative formula to derive “correct” rates of benefit, rather judgments have been made balancing a number of competing objectives and issues, including whether the rates:

• provide an adequate income to allow participation and belonging[1] in society
• are fiscally sustainable (both the rate paid and the number of people supported by benefits affect their affordability)
• maintain incentives to work
• maintain incentives to study (particularly in the case of younger people)
• are publicly accepted (generally perceived as not too high and not too low and are consistent with broad assumptions about the needs of the particular benefit group – for example the assumption that a person receiving Jobseeker Support will return as quickly as possible to paid work)
• achieve broadly equivalent living standards[2] for different household types receiving the same benefit.

3 By convention, the purchasing power of benefit rates is preserved by an adjustment on 1 April each year reflecting any increase in the cost of living as measured by the movement in the Consumers Price Index. The Social Security Act contains provision to make this adjustment mechanism a legislative requirement. Unlike New Zealand Superannuation rates, main benefit rates are not linked to any wage measure. Hence, under the current adjustment mechanism, benefit levels will rise relative to wages at times when prices move faster than wages, and fall relative to wages when wages move faster than prices.

4 Within each working age benefit type, different rates apply for people who are couples, sole parents or single (this rate also varies according to the age of the person).

5 Additional basic income support for dependent children is paid through the family tax credit. The rate of benefit paid for couples with children is the same as the rate paid to couples without children. All of the working age benefits contain a sole parent rate of payment, which is higher than the single rate. This means that a sole parent can have his or her family circumstances recognised through any of the main benefits. The sole parent rate is the same regardless of the number of dependent children. New Zealand Superannuation is not a working age benefit and has a different rate structure for single people and couples.

Note [1]: ………(see scan copy provided under relevant link below!)

Note [2]: ………(see scan copy provided under relevant link below!)

I hope you would find our explanation as above, an adequate response to your OIA (Request 1) of 08 July 2015.

Kind regards Diane”

A PDF containing an authentic scan copy of the final email response by Diane Anderson of the Ministry, dated 9 March 2018, can be found via these links (only partly redacted):
MSD, OIA Rqst, 08.07.15, Benefit Rates, final response, email, anon, 09.03.18
MSD, OIA Rqst, 08.07.15, Benefit Rates, final response, email, hilit, anon, 09.03.18

 
 

F) ANALYSIS OF THE INFORMATION PROVIDED BY MSD

The OIA requester was presented with two responses he received from the Ministry, one dated 19 Nov. 2015, the other one dated 9 March 2018, and they contained more or less the same information.
Re the responses to questions 1 to 3 of the first OIA request from 8 July 2015 MSD continued to maintain that there was no legislative formula used for calculating and setting benefit rates. They were not based on particular living costs, it seemed. Benefit rates would rather depend on a person’s circumstances, i.e. whether being single, or in a relationship and/or whether having dependants as a sole parent. The Consumer Price Index (CPI) was mentioned in the first response, to explain that inflation adjustments are made annually, as the Social Security Act 1964 appears to require it.

With the second response the Ministry then referred to the schedules in the Social Security Act, which would contain the current benefit rates, which had not been mentioned in their first response. Nevertheless, a number of factors were again listed, which were apparently being considered when determining benefit rates. Also did Diane Anderson mention ‘additional basic income support’ being available for parents with children, in the form of the family tax credit. This further response was provided to the OIA requester upon internal consultation with the Ministry’s ‘Policy Team’.

Besides of maintaining ‘incentives’ to work or study, benefits had to be ‘fiscally sustainable’, Diane Anderson wrote in her email letter. Also did she comment: “The current rates have been arrived at by a series of historical decisions.”

The first response by Carl Crafar, dated 19 Nov. 2015 listed (besides others) this objective:
“provide an adequate income to allow participation and belonging in society”.
The second response by Diane Anderson, dated 9 March 2018, listed (besides others) the same:
“provide an adequate income to allow participation and belonging[1] in society

It is worth noting what the complainant wrote in his Ombudsmen Office OIA complaint of 22 Nov. 2015:
“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.”

As was mentioned in a note further above in this post (under the transcript of the complainant’s letter to the Ombudsmen, dated 22 Nov. 2015), the page that now loads on the ‘Studylink’ website – when clicking the link provided – is no longer the same. Information that was once made available there is no longer to be found. Only simplified, brief, more general and less specific information is shown for the Student Allowance. We no longer find a reference to the ‘Housing Expenditure Survey 2007’.

That survey from 2007 will of course by now be well out of date, but one would have thought, that when determining any benefit rates, the Ministry would get its policy team experts source and use some relevant scientifically gathered statistical information in the form of details on what an average person needs to cover his or her basic living expenses. How else can anyone determine what is an adequate income for a person having to live off a benefit?

It appears though, that the Ministry is extremely reluctant to be nailed down on any details that may somehow be used to determine benefit rates, possibly for fear of people taking them to court or so, should benefit rates prove to be insufficient to enable a person to ‘participate’ and ‘belong’ in society.

It is beyond belief, that those in charge of forming MSD policy and offering advice, which is also used by the government of the day to make decisions on social security matters, including the setting of benefit rates, would not conduct any research and not make any calculations in whatever form. It is hard to believe that they would not base any advice or guidance to government on reliable, scientifically gathered statistical data from Statistics New Zealand – or any other agency.

Costs for food, clothing, accommodation, transport/travel, electricity, water, phone, social spending and so forth, these are factors that must surely be relevant and considered. But as it appears, at least going by the Ministry’s responses, they are not directly used when determining benefit rates.

So if this is true, then the Jobseeker Support, Supported Living Payment and Sole Parent Support benefit rates are simply set by the government of the day as they see fit, purely at will, possibly by following some form of undisclosed unscientific guidance or advice given by ‘experts’ within the Ministry. It is then presented to Parliament, either as a legislative instrument in the form of an Order in Council, approved by the Governor General, or in the form of a Bill. Only the latter would need to be read and voted on, to have it passed into law.

The Ministry, does appear to try and tell us that benefit rates are decided on by the government, then acknowledged or signed off by the Governor General and/or Parliament, so as if their own ‘Policy Development’ staff and management would have nothing to do with processes being followed. A look at their website on the page(s) found via this following hyperlink would suggest otherwise:
https://www.msd.govt.nz/about-msd-and-our-work/work-programmes/policy-development/index.html

That is what they seem to be telling the OIA requester, although the information on their website says the following:
Developing policy

The policy group is the government’s principal provider of policy and social sector advice.”

More about the Ministry’s policy branch can be found on their website by clicking the following hyperlink:
https://www.msd.govt.nz/about-msd-and-our-work/about-msd/our-structure/policy-cluster.html

Of particular interest to readers will be the following information:

Employment and Income Support

The Employment and Income Support policy group comprises three teams:
Youth Employment and Labour Market team: responsible for policy development and advice relating to labour market change and demand, and long term benefit dependency. The team focuses particularly on improving the education, employment and quality of life outcomes of disadvantaged young people.

Health and Disability Employment team: responsible for policy advice on addressing the barriers to employment faced by people with a health condition or disability. The team focuses on ensuring disabled people and people with health conditions are supported to obtain work and enjoy a higher quality of life.

Income Support team: responsible for producing policy advice on a range of topical income support issues. The team focuses on ensuring that the benefit system is fair and robust and improving financial incentives to work or prepare for work.

(as shown on the MSD website on 21 May 2018)

 

And that last bit tells us quite clearly, where MSD’s ‘Employment and Income Support’ policy group’s main focus lies:
A ‘fair’ and ‘robust’ benefit system, obvoiusly primarily geared to ‘improving financial incentives to work or prepare for work’. And so they have for years been giving government ‘advice’ on policy that then led to actions like abolishing the former ‘Sickness Benefit’, to merging sick and disabled with other ‘jobseekers’ into the ‘Jobseeker Support’ benefit, and to leaving those on the only slightly higher ‘Supported Living Payment’ benefit languish in abject poverty, while they are too severely and permanently sick and/or disabled to engage in any forms of work on the open job market, which is one where they are expected to compete with the physically and mentally fit.

 

Author’s note:

For information on Legislative Instruments and Orders in Council, see the following links:
http://www.pco.govt.nz/about-legislation#lis
http://www.legislation.govt.nz/glossary.aspx
https://www.dpmc.govt.nz/our-business-units/cabinet-office/executive-council
https://en.wikipedia.org/wiki/Order_in_Council

 
 

G) CONCLUSION

So in summary, we can conclude that the Ministry of Social Development (MSD) takes a position that it is not, at least not directly, involved in a process of determining base or main benefit rates. It appears to claim there are no considerations made in relation to having particular living costs be reflected in benefit rates – as components or parts of the whole base rate. Although the Ministry does clearly have a ‘Policy Team’, a ‘Policy Branch’ or ‘Policy Development Branch’, that does most certainly offer advice on various policy matters to the government of the day, it appears to disassociate itself from having any significant input in the setting of benefit rates. They do this, although the Ministry has an Income Support team that is responsible for producing policy advice on a range of topical income support issues.

We are told it is simply the government, or rather the Minister of Social Development, asking the Governor General for approval of an Order in Council, when changing benefit rates, shown in the schedules of the Act. Or alternatively, if there are more significant changes planned, it is the government presenting a Bill to Parliament, seeking the introduction of, or major changes to, benefits and corresponding (new) rates, relying on a majority vote to pass such a legislative change into law.

Hence, in our view, we are back to the business of passing the buck, the splitting of hair, and more obfuscation and pretence, as it is simply not all that credible, that MSD and their researchers and policy advisors play no significant, effective role in the way benefits are set. It appears that the advice that must nevertheless be given to governments is simply not based on any scientifically gathered statistical data on ordinary, average, basic living costs people in New Zealand have to pay. It is advice that appears to rather be driven by considerations of a few factors, including such that ensure people are kept poor enough, to feel an ‘incentive’ to work, or at least to study and thus prepare themselves for work on the open job market.

When some wages are so low, that many working full time are now also considered to be ‘working poor’, and when those working are struggling to meet basic living costs, then the Ministry appears to be advising government to still keep benefits lower than such wages, so that people have ‘incentives’ to work. That is basically where many are left in modern day New Zealand, kept poor, whether working, or worse still, even poorer if unable to find work, or unable to work altogether.

It took MSD well over two and a half years to respond in a more qualified manner to these OIA requests, seeking simple, clear and honest answers on how benefit rates would be set, and whether basic living costs would possibly be considered to be reflected in the form of components of the base or main benefits. Even then, they avoided to offer more clarity. And as so often, the Ombudsmen did not appear to be too interested in getting more appropriate responses from MSD. Worse still, the complaint made already in late Nov. 2015, was left lying around for over two years.

In any case, whatever considerations may be made, whatever advice the Ministry may give to the government, in the end it is the government of the day in New Zealand that sets the social security benefit rates at will, as it sees fit, based on advice received and its own judgment, as explained above.

 
 

Quest for Justice

 

23 May 2018

 
 

Here is a link that will load a PDF version of this post, which some may find easier to read and study. If the links in that document may not work with your browser, copy and paste them into a search engine box and you will find the actual documents or website pages that way:
Social Security Benefit Rates in N.Z., Set at Will by Govt, Ignoring Evidence, NZSJB, 23.05.18

 

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MSD RELEASE OUTDATED ‘GUIDE FOR DESIGNATED DOCTORS’ AND CURRENT DESIGNATED DOCTORS LIST – ONLY UPON ADVICE BY THE NZ OMBUDSMAN


MSD RELEASE OUTDATED ‘GUIDE FOR DESIGNATED DOCTORS’ AND CURRENT DESIGNATED DOCTORS LIST – ONLY UPON ADVICE BY THE NZ OMBUDSMAN

 
 

CONTENTS:

PART 1: INTRODUCTION
PART 2: OFFICIAL INFORMATION ACT (OIA) REQUEST OF 27 SEPT. 2016 TO THE MINISTRY OF SOCIAL DEVELOPMENT (MSD)
PART 3: EARLIER OIA REQUEST TO MSD, DATED 1 OCT. 2014
PART 4: EARLIER OMBUDSMAN OIA COMPLAINT OF 9 MARCH 2015
PART 5: MSD’s FIRST RESPONSE TO THE NEW OIA REQUEST, DATED 27 OCT. 2016
PART 6: MSD’s SECOND RESPONSE TO THE NEW OIA REQUEST, DATED 23 NOV. 2016
PART 7: OMBUDSMAN OIA COMPLAINT OF 3 DEC. 2016 – ABOUT MSD’s INFORMATION REFUSAL
PART 8: MSD’s LATE RELEASE OF THE OUT OF DATE ‘GUIDE FOR DESIGNATED DOCTORS’ ON 8 NOV. 2017 – ONLY AFTER INTERVENTION BY THE OMBUDSMAN
PART 9: MSD’s PREVIOUS RELEASE OF THE SAME KIND OF ‘GUIDE’ – WITH AN OIA RESPONSE IN MARCH 2011
PART 10: MSD’s CONFUSING COMMENTS RE ‘GUIDES’ FOR MEDICAL PRACTITIONERS IN ANOTHER OIA REPLY FROM 3 FEB. 2017
PART 11: MSD RELEASE A NEW CURRENT LIST OF DESIGNATED DOCTORS – UPON ADVICE BY THE OMBUDSMAN
PART 12: CONCLUSION: SECRECY, OBFUSCATION, APPARENTLY INTENDED CONFUSION AND UNCERTAINTY

 
 

PART 1: INTRODUCTION

As part of wider welfare reforms to bring in changes in the treatment of beneficiaries with health conditions, injuries and disability, and also with the appointment of a new hierarchy of Principal and Regional Health and Disability ‘Advisors’ in 2007, the Ministry of Social Development (MSD) followed a new approach in trying to move more persons with longer term sickness and disabilities off benefits and back into employment.

It was all part of the ‘Working New Zealand: Work Focused Support’ programme, brought in by the then Labour led government under Prime Minister Helen Clark and her Ministers.

A key role in this new strategy was held by medical practitioners and some other health professionals, who were expected to work with MSD and Work and Income to achieve better outcomes, so that persons who suffered from sickness, injury and/or disabilities managed to stay in employment, or returned sooner into employment, where needed with extra supports.

It was in early to mid 2008 that MSD’s main department Work and Income (WINZ) released their ‘Guide for Designated Doctors’, which was one piece of a ‘guidance’ document, that MSD presented then, to “assist” their signed up ‘Designated Doctors’, who were mostly general practitioners, when completing medical certificates and cooperating with WINZ.

There were other measures being prepared and started as early as 2006/2007, and in all earnest during 2008, which involved the preparation and commencement of so-called ‘Designated Doctor Training’ by Senior Advisors at MSD, which was something the Ministry had never engaged in before. That would later raise serious new questions about the actual independence of ‘Designated Doctors’, and we believe that was part of the reason, that this kind of on site group training of assembled medical practitioners would not be continued.

For a sample of information that was then being communicated within MSD, see the authentic ‘Memo’ copy found by clicking this hyperlink (from 23 Jan. 2008; see under page 4 and Training material the mention of a Designated Doctors Guide):
MSD, Des. Dr Training + Comm. Requirements, J. Russell, M. Mortensen, memo, 23.01.2008
MSD, Des. Dr Training, Comm. Requiremts, J. Russell, M. Mortensen, memo, hi-lit, 23.01.2008

To fully understand what was going on then, we strongly recommend you read and study this post, found under the following hyperlinks (one leads to a downloadable PDF version):
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

As there are likely to be ongoing changes made to the way WINZ, their Designated Doctors, Principal Health Advisor, Principal Disability Advisor, and also Regional Health Advisors and Regional Disability Advisors, work with clients having health conditions, injuries and/or disabilities, some of what has been covered by that revealing post may not be quite current anymore, but we believe, that the overall approach and system has not changed all that much.

A dedicated official information requester, who is well trusted by us, has over recent years been following the developments in the medical and work capability assessment regime area. He has gathered substantial information on Work and Income’s ‘Designated Doctors’. He has also carefully studied what WINZ have been doing by bringing in new trials and other programmes, aimed at getting people with mental health and other so-called ‘moderate’ and ‘common’ health conditions into employment. He has made a number of interesting OIA requests to the Ministry (MSD), which generated some responses offering useful insights.

Being as concerned as many directly affected persons dependent on benefit income are, who often face unrealistic expectations by employers, as well as by MSD, he asked repeatedly for information on what advice and guidance material MSD may be using and providing to medical practitioners and various other health professionals. With a request of 27 Sept. 2016 he once again asked for more information on that, as well as for a current list of the ‘Designated Doctors’ that MSD and WINZ use for examining and assessing clients.

This post reveals the massive barriers that MSD and WINZ appear to have put into place, for any person seeking transparency and more information about how Work and Income works with persons on benefits granted on grounds of poor health and/or disability.

It also reveals for the first time, the very current list of their Designated Doctors, which does now look somewhat different to one that had been made available in August 2012.

 

PART 2: OFFICIAL INFORMATION ACT (OIA) REQUEST OF 27 SEPT. 2016 TO THE MINISTRY OF SOCIAL DEVELOPMENT (MSD)

On 27 September 2016 the information requester sent a new OIA request by email to MSD, requesting, besides of a lot of other information (MHES, other trials), access to the following:

11. Information in the form of a complete current list (with names, health qualifications, practice names and addresses, preferably also by regions) of ‘Designated Doctors’ that MSD and WINZ have on their files, and being available to be commissioned to conduct medical and/or work capability examinations on WINZ clients with health conditions and disabilities, and/or persons who they may care for (see for instance also provisions under sections 88E, 40C and 40E of the Social Security Act 1964).”

12. Information in the form of the official current ‘Guide for Designated Doctors’, or any newer replacement guide, that MSD provides to medical and health practitioners in order to inform them of their requirements and expectations in relation to conducting examinations and preparing reports for MSD – on clients with health conditions and / or disability. I note that some time ago, in an earlier Official Information Act response a reference was made to the WINZ or MSD website, where such information could supposedly be found, but it was never found, even after extensive searching.”

He closed his request letter with the following comments:
“The above specified information is sought for reasons of providing desired transparency and accountability to the public, and is asked to be made available under the Official Information Act 1982 within the specified time frame of 20 working days.”

The full authentic text of that OIA request letter dated 27 Sept. 2016, only partly anonymised, can be found by clicking the following hyperlink:
MSD, O.I.A. request to C.E., re Work to Wellness providers, MHES, SPES, etc., anon, 27.09.2016

 

PART 3: EARLIER OIA REQUEST TO MSD, DATED 1 OCT. 2014

As a matter of fact, the requester had made a somewhat similar request years earlier, on 1 October 2014, when he asked under 11 for the following information to be made available:

“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.”

At the end of that request letter, he considered it appropriate to remind MSD of the following:
“The above specified information is sought for reasons of providing desired transparency and accountability to the public, and also to obtain assurances that the Ministry, same as its contracted service providers, do provide all their services at the highest standard, and at all times in a professional, acceptable, fair and reasonable manner. The specified information is asked to be made available under the Official Information Act 1982 within the specified time frame of 20 working days.”

The authentic, partly redacted text of that earlier OIA request of 1 Oct. 2014 is found here:
MSD, OIA request, MHES, WAA, other support services, issues, questions, anon, 01.10.2014

It took months for the requester to finally get a response to that comprehensive OIA request of 1 Oct. 2014, which was dated 26 February 2015. But the information released by Debbie Power as Deputy Chief Executive for Work and Income was mainly about the new trials being run as Mental Health Employment Services (MHES) and Sole Parent Employment Services (SPES), and about a few other areas.

In regards to his request 11 all that was provided in MSD’s response on page 8 was this:
“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 .”

And upon looking on the website, the OIA requester was left to search for himself, to find only very limited, rather general, unspecific and little useful information on Designated Doctors, medical assessments and so forth. No ‘Guide for Designated Doctors’ or any similar ‘guidance’ material offering advice, directions or expectations could be found anywhere.

That much delayed and very unsatisfactory response that was then provided to him by MSD by way of an email and letter of 26 Feb. 2015 can be found (in redacted) form via this link:
MSD, OIA rqst, MHES, WAA, other support services, issues, reply, anon, 26.02.2015
MSD, OIA rqst, MHES, WAA, other support services, reply, anon, hilit, 26.02.15

So the requester was simply referred to very general and basic ‘guidance’ information on the Work and Income website, nothing more, which seemed like an attempt of obfuscation, when considering earlier, a bit more transparent OIA responses which he was sent by MSD in 2011.

Some additional information would be released very much later on 22 Nov. 2017, upon Ombudsman complaints made on 13 Dec. 2014 and 9 March 2015, but that particular response would not answer the requester’s questions about any advice, expectations and criteria that WINZ may be communicating to medical and health professionals for examining and assessing sick and/or disabled clients. There would be no further information about the ‘Guide for Designated Doctors’, or something similar that WINZ may be using.

 

PART 4: EARLIER OMBUDSMAN OIA COMPLAINT OF 9 MARCH 2015

Following an initial delay complaint, dated 13 Dec. 2014, about MSD not providing the earlier promised information requested by way of his letter dated 1 October 2014, the requester filed a more comprehensive, formal OIA review complaint to the Ombudsmen on 9 March 2015, after having received that unsatisfactory response on 26 Feb. 2015 (see above).

In his letter of 9 March 2015 he wrote re his request point 11 and re MSD’s response:
Regarding Request 11

I asked for the following information:
“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.”

I appreciate the information provided and referred to on the Work and Income website. This does though only cover 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 I 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. I am 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.

I had also asked: “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 my request has in that regard not been met. I must therefore ask again that such information is provided, which would not be case specific, and which is applied more generally. This kind of information is not available via the website, and it goes beyond 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 it, I am sure MSD can mention and explain these.

Last not least I also asked 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

That part of my question 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.”

Here’s a link to a PDF with the authentic, partly redacted text of the more important complaint letter of 9 March 2015 (that followed the brief ‘delay complaint’ of 13 Dec. 2014):
Ombudsman, complaint, MSD, failure to comply w. O.I.A. rqst, sundry items, anon, 09.03.15

Like with other Ombudsmen Office complaints at that time, this matter would drag on for years, until it would finally be progressed from mid May 2017 onwards. But the ‘Guide for Designated Doctor’ question would not be resolved in any form until 8 November 2017, that was only after yet another complaint was made to the Ombudsmen Office on 3 Dec. 2016 about MSD’s unsatisfactory response to the newer information request dated 27 Sept. 2016!

 

PART 5: MSD’s FIRST RESPONSE TO THE NEW OIA REQUEST, DATED 27 OCT. 2016

There was one short, initial response by the ‘Official and Parliamentary Information team’ of MSD on 29 Sept. 2016, basically only confirming to the requester that they had received the OIA request of 27 Sept. on 28 September 2016, and informing him that the matter had been referred to their ‘National office’ to respond.

Here are hyperlinks that will load the partly anonymised first response by MSD (dated 29 Sept. 2016) to the information request by our OIA requester, the one dated 27 Sept. 2016:
MSD, OIA Rqst, 27.09.16, MHES, Work to Wellness, Des. Drs, 1st email reply, anon, 2 p., 29.09.16
MSD, OIA Rqst, 27.09.16, MHES, Work to Wellness, 1st email reply, hilit, anon, 2 p., 29.09.16

On 27 October 2016 the Ministry did then send a more formal initial response email, stating the following:

“On 27 September 2016 you wrote to the Ministry requesting, under the Official Information Act 1982, information regarding the Mental Health Employment Services.

The Ministry has decided to grant your request in part, namely information which relates to Work to Wellness services. However, it will take some time to prepare this information for release. The information will be sent to you by 17 October 2016. The Ministry has also decided to refuse your request for information which relates to the following:

• A copy of the list of Designated Doctors including their qualifications, location and clients they treat is refused under section (9)(2)(a) of the Act.
• Whether clients with mental health conditions had suffered any medical problems since being referred to Work and Income is refused under section (9)(2)(a) of the Act.
• The number of people who had been approached to be referred for the service is refused under section 18(e) of the Act as the information does not exist.
• Your request for the ‘Guide for Designated Doctors’ is withheld under section (9)(2)(f)(iv) of the Act as the information is under active consideration.

If you wish to discuss this decision with us, please feel free to contact OIA_Requests@msd.govt.nz

You have the right to seek an investigation and review by the Ombudsman of this decision…”

So once again some valuable, important and possibly sensitive information was being refused by the Ministry, which was nothing all that new to our OIA requester. Nevertheless, it was a disappointment, upon which he would take further action.

A PDF with an authentic, partly anonymised copy of that email response of 27 Oct. 2016 can be found by clicking the following hyperlinks:
MSD, OIA Rqst, 27.09.16, MHES, Work to Wellness, Des. Drs, email resp., anon, 3 p., 27.10.16
MSD, OIA Rqst, 27.09.16, MHES, Work to Wellness, Des. Drs, email resp., hilit, anon, 3 p., 27.10.16

 

PART 6: MSD’s SECOND RESPONSE TO THE NEW OIA REQUEST, DATED 23 NOV. 2016

MSD did present a formal, more comprehensive OIA response in respect of a lot of the other information, as it had been requested on 27 Sept. 2016, which came by way of an email sent to the requester on 24 November 2016, having attached their letter, dated 23 Nov. 2016.

Most information was about the ‘Work to Wellness’ employment referral service, about the MHES and related aspects. But information on ‘Designated Doctors’, the ‘Guide for Designated Doctors’, or any newer replacement guide, and the likes, was again refused.

In response to request ‘11’ the response by the Ministry was the following:
“Information about the doctors including their location, practice name, qualifications and the clients they care for is withheld under section 9(2)(a) of the Act. The need to protect the privacy of these individuals outweighs any public interest in this information. Additionally, the doctors have not given the Ministry consent to release their information when requested. I understand the Ministry has released the list previously to another requester and unfortunately was released in error.”

In response to request ‘12’ the Ministry wrote:
“The current status of the guide for designated doctors is currently being updated and a refreshed guide will be available once this has occurred. As such, this part of your request is refused under section 9(2)(f)(iv) of the Official Information Act as it is under active consideration. The release of this information is likely to prejudice the quality of information received and the wider public interest of effective government would not be served.”

While committing itself to the principles and purposes of the OIA, this response by MSD was anything but helpful, and not convincing to the OIA requester. The letter was signed by Ruth Bound, Deputy Chief Executive, responsible for Service Delivery.

A PDF file with the complete, authentic, only partly anonymised scan copy of this response of 23 Nov. 2016 can be found via this hyperlink:
MSD, OIA rqst re Work to Wellness, MHES, SPES services, fr. 27.09.16, D.C.E. reply, anon, 23.11.16

 

PART 7: OMBUDSMAN OIA COMPLAINT OF 3 DEC. 2016 – ABOUT MSD’s INFORMATION REFUSAL

Given the blunt and firm refusal by MSD to make available a range of remaining, sought information, including the list of Designated Doctors, and the ‘Guide for Designated Doctors’, or any replacement ‘Guide’, our requester filed yet another complaint with the Office of Ombudsmen, which was dated 3 Dec. 2016.

In it he referred to his original request of 27 Sept. 2016, the responses by MSD dated 27 October and 23 Nov. 2016 (see above), and then wrote the following under the corresponding paragraphs:

[4] My requests 5 and 11 appear to have been refused under section 9(2)(a) of the Official Information Act 1982, which says the following:
‘9 Other reasons for withholding official information’ ….
“(2) Subject to sections 6, 7, 10, and 18, this section applies if, and only if, the withholding of the information is necessary to—
(a) protect the privacy of natural persons, including that of deceased natural
persons; ..“

[5] My request 12 was refused under section 9(2)(f)(iv) OIA, which says the following:
“(f) maintain the constitutional conventions for the time being which protect—
(iv) the confidentiality of advice tendered by Ministers of the Crown and officials;..”

He expressed his disagreement with MSD’s stated reasons for those refusals, and offered his arguments and explanations as to why the so far withheld and refused official information should be made available to him after all.

In relation to the ‘Designated Doctors List’ he expressed the following concerns, gave his reasons and explained his views and position on why the information should be released (under the corresponding paragraphs):

[9] Refusal 1. – under section 9(2)(a) O.I.A., as mentioned in MSD’s letter:
It was under point ’11.’ In my request from 27 September 20162 that I asked MSD for the following information:
11. Information in the form of a complete current list (with names, health qualifications, practice names and addresses, preferably also by regions) of ‘Designated Doctors’ that MSD and WINZ have on their files, and being available to be commissioned to conduct medical and/or work capability examinations on WINZ clients with health conditions and disabilities, and/or persons who they may care for (see for instance also provisions under sections 88E, 40C and 40E of the Social Security Act 1964).”

[10] In my letter from 31 October 20164 to MSD, I first expressed my concern that the Ministry’s staff may have misunderstood my question, in particular the following sentence:
“A copy of the list of Designated Doctors including their qualifications, location and clients they treat…”

[11] I did then clarify to MSD that it was not my intention to ask for any information about “clients” that may be “treated” by ‘Designated Doctors’ used by Work and Income (WINZ). I explained that the word “clients” was meant to refer to clients of WINZ, but that I would of course not expect any identifiable information of clients to be made available. All I asked for was information in the form of a current list of such medical practitioners used by WINZ, with their names, qualifications, practice names, addresses and preferably regions they work in.

[12] Also did I state the fact, that I had been informed that such a list had previously been made available in October 2012 to ACCLAIM Otago, in Excel file format, which contained details on the region, centre, first name, surname, registration, practice name, phone number, facsimile number, address, suburb, town/city and postal code of the so-called ‘Designated Doctors’ that then worked for the Ministry. I did after then view a copy of that file received through contacts.

[13] I pointed out that the ‘FYI’ website, found via the following link, does also clearly state that such information had been made available on 09 October 2012:
https://www.fyi.org.nz/request/list_of_designated_doctors_for_b
A published letter on ‘FYI’ – from the Ministry dated 16 Oct. 2012 – refers to the earlier request and the response given then, and at the top of the web-page it says without any doubt “The request was successful”. At least at a later stage the information made available to ACCLAIM Otago was also shared with other persons, so many Designated Doctors that were already then on the list are already widely known to work with or for WINZ. If required I can also mention one or two web based forums, where links to the list were published.

[14] Hence I informed MSD that I consider the refusal of that information to be somewhat irritating and hard to understand, as it appeared to be inconsistent with the previous official information policy by the Ministry. I wrote to MSD that I did not even ask for all the types of information that had then been previously released, and I explained that I could even agree to leaving the qualifications of the ‘Designated Doctors’ out from my request, and have instead only mentioned under what type of ‘registration’ these practitioners do work for the Ministry. I stated that I would uphold my request, and that I’d expect the information I asked for, at least a list of the ‘Designated Doctors’ by name, surname, WINZ region or district, and their registration.

[15] I wrote to MSD that it appeared unreasonable to refuse the information under section 9(2)(a) in view of the fact that such concerns had not previously been expressed. I explained to MSD how the Medical Council of New Zealand (MCNZ) does itself have a publicly available register for all medical practitioners. Any person can check the details of a practitioner’s registration, the vocational scope she/he works under, plus in which geographic district the professional may be based. I also presented a hyperlink to the MCNZ’s website, where a full list of all registered practitioners is available for a fee:
https://www.mcnz.org.nz/support-for-doctors/list-of-registered-doctors/

[16] Furthermore did I mention to MSD that the MCNZ even publishes a list of doctors who are currently suspended and also whose registration has been cancelled, and I presented this link:
https://www.mcnz.org.nz/support-for-doctors/suspended-doctors/

[17] I expressed my view that when the MCNZ and other registration authorities offer at least the publicly available information as they do, then the Ministry of Social Development should also not conceal information about who is working for it as ‘Designated Doctor’ – or any information about internal or external Advisors that it may use.

[18] In her response from 23 November 20165, Ruth Bound, Deputy Chief Executive at MSD, gave the following explanation for refusing the information I asked for:
“Information about the doctors including their location,• practice name, qualifications and the clients they care for is withheld under section 9(2)(a) of the Act. The need to protect the privacy of these individuals outweighs any public interest in this information. Additionally, the doctors have not given the Ministry consent to release their information when requested. I understand the Ministry has released the list previously to another requestor and unfortunately was released in error.”

[19] This ground for refusal is not accepted by me. Firstly, the Ministry admits that the information was already made public by way of an “error”. I have reliable information that the then published ‘Designated Doctor List’ has been shared via the internet and other means, and therefore the names and at least some other details of the practitioners listed in it, are already publicly available. While there may have been some changes to the composition of the list, as it may have been updated since August 2012, it can though reasonably be presumed that the bulk of the names remain unchanged on the Work and Income list for Designated Doctors, as there has traditionally been only little change by practitioners moving on or off that list.

[20] As the information has already been released, it appears to be unreasonable to maintain the ground for refusal under section 9(2)(a) OIA to protect the privacy of the medical practitioners listed. If the formerly listed practitioners, who I argue will still make up the bulk of that list, have had their details already made available to the public, there is no justification to apply section 9(2)(a). And if it is applied now, then only new practitioners, who may have been added to the list that MSD holds, can rest assured that their details are not publicly available, which though unreasonably prejudices the other practitioners, whose details are already available.

[21] I do also maintain, that there is most definitely a public interest in the information being made available, at least in part, and to a similar degree as the MCNZ makes available information about its registered members. Why should the MCNZ see fit to publish names of registered practitioners, offering a reasonable degree of transparency and accountability, and why should MSD and Work and Income and their Designated Doctors on the other hand be treated differently – in a privileged manner? I consider that the clients that use and depend on the services provided by Work and Income, and that are also required by Work and Income to meet obligations, like having to see a Designated Doctor for a second opinion, must have a right to reasonable transparency. Clients, and for that sake also the wider public, should be informed about who does as a general practitioner, or any other medical or health professional, work for MSD and WINZ as a Designated Doctor to examine sick and disabled persons for their entitlement to benefits or capacity to work.

[22] Designated Doctors should have nothing to hide, should not conceal their name or professional qualification or registration from the public, and should instead be transparent and accountable, as otherwise serious questions about their roles, their competency, their integrity and their ways of working with MSD will arise, which will lead to increased distrust in clients towards their involvement as examiners and assessors for Work and Income.

[23] I may also inform you, that I have myself once experienced great injustice when being wrongly assessed by a WINZ Designated Doctor who “examined” me and followed an unreasonably tight work capacity direction set by the WINZ Principal Health Advisor, declaring me “fit for work”, while my own doctor and specialists agreed in all their reports, that this was definitely not the case. I was even forced to appeal a flawed decision made by WINZ and face a Medical Appeals Board (appointed by MSD!), and then even had to apply for a judicial review at the High Court, to challenge yet another highly questionable decision by that Medical Appeals Board, that largely upheld WINZ’s seriously flawed decision. I will attach evidence of this and other important information of relevance in attachments 6 to 12. That evidence also includes recent findings that MSD’s Principal Health Advisor has been using incorrect data in his presentations, or at least drawn wrong conclusions from inconclusive statistical reports.

[24] Therefore I insist on MSD providing the following information about their Designated Doctors:
The full name, the WINZ region or district, and the registration details of their practitioners.
I ask you as Ombudsman to thoroughly investigate and carefully consider the matter, and to recommend that MSD makes at least that basic information available, so WINZ clients, or any other interested person in the wider public, can use that information to perhaps obtain additional information from the MCNZ, on any practitioner they may be interested in learning some essential details about, or about whom they have some concerns.”

 

In relation to the ‘Guide for Designated Doctors’ he raised the following concerns, and presented his position to the Ombudsman (again under corresponding paragraphs):

[44] Refusal 4. – under section 9(2)(f)(iv) O.I.A., as listed in your email:
It is with serious concern that I note that my request under point ‘12.’ In my letter from 27 Sept. 20162 for the release of the ‘Guide for Designated Doctors’, or any similar, replacement guide, has been refused under the new section 9(2)(f)(iv) O.I.A..

[45] In her response from 23 November 20165 Ruth Bound, Deputy Chief Executive, gives the following explanation for MSD’s refusal to make this information available:
“The current status of the guide for designated doctors is currently being updated and a refreshed guide will be available once this has occurred. As such, this part of your request is refused under section 9(2)(f)(iv) of the Official Information Act as it is under active consideration. The release of this information is likely to prejudice the quality of information received and the wider public interest of effective government would not be served.”

[46] Well, I can inform you as Ombudsmen, that I was provided a copy of the Ministry’s former ‘Guide for Designated Doctors’ (effective Sept. 2010), together with an Official Information Act response, by former Chief Executive Mr Peter Hughes on 24 March 201115 (upon my request from 29 Dec. 2010). I may refer you to the attached evidence and the bullet points at the bottom pf page 7 in that letter. In a further O.I.A. request dated 01 October 2014 I did with request ‘11’ ask for information on the guidance given to ‘Designated Doctors’, and also asked where a copy of the ‘Guide for Designated Doctors’ could be found. This was after I had earlier been told, it could be found on the Work and Income website. In her response to me, dated 26 Feb. 201514, Ms Debbie Power then responded that: “All guidance for medical practitioners on about the Medical Certificate is now provided online at: http://www.workandincome.govt.nz .”

[47] The information found on the WINZ website is very general and rather sparse in contents, and never answered the requests that I made earlier. The only other document ever found on the website has been an application form for Designated Doctors, hence there is no information available for public scrutiny, what a current ‘Guide for Designated Doctors’ does contain, and what detailed advice the Ministry gives to such professionals it works with, when examining sick and disabled clients, or applicants, which includes assessing their capacity to work.

[48] I must consider this to be a very serious lack of transparency, which is in my view not warranted and not fair and just in this time and age. There have been many anecdotal reports of cases where clients have felt unfairly treated, and where reports completed by ‘Designated Doctors’ appear to be inconsistent with a client’s medical records, including reports and advice. As already mentioned, I can add my own personal experience to theirs.

[49] Therefore one should expect that the Ministry would make available a copy of the present Guide, as it appears to now have been “under active consideration” for years, which is unacceptable. There must at some point in time be transparency offered for persons who wish to obtain more detailed insight into how ‘Designated Doctors’ are informed, advised and offered “guidance” by the Ministry, as otherwise serious questions will continue about the fairness, objectivity and reasonableness of Designated Doctors, when performing their work.

[50] Given the unavailability of a ’Guide for Designated Doctors’, the present situation in regards to guidance and advice given by MSD to its Designated Doctors may somehow resemble a situation, where common citizens are expected to declare or even defend themselves, in front of persons having decision making powers over them, while being denied access to relevant legal and other relevant information to inform themselves about how decisions may be formed. It may also resemble a situation, where persons facing examinations by law enforcement officers – or hearings by persons with jurisdictional powers, are being denied any access to information that would assist them to understand how decisions about them would be formed. This is in my view a denial of basic legal rights a person should have.

[51] It must also be considered that every day dozens if not hundreds of persons are expected to reveal sometimes very private, intimate details about their living and health situation, when applying for benefits or when having to meet various obligations they have as clients of Work and Income. At the same time I note that the Ministry now often sends email responses from its Online Service, which bear no names, at best they may only have a number at the bottom. Even the Official and Parliamentary Information team does not mention any names of the author of emails at the bottom of them; see again attachment 3 for an example.

[52] This represents a growing serious imbalance between the expected transparency, accountability and access to information that exists between the Ministry on one hand, and its clients on the other. Some persons may even think that it is perhaps not surprising that the relationship between staff and clients has over recent times worsened, because of such realities, which could create a great sense of injustice in many clients of WINZ and MSD.

[53] Therefore I ask for the investigation and intervention by the Office of Ombudsmen, to have clarified why an updated ‘Guide for Designated Doctors’ has not been made available for years now. I would expect that such a Guide is made available, and if the present one may not be the appropriate one to publish, as it may have passed its “use by date”, then MSD should be advised and expected to make a new Guide available within the foreseeable future, and offer a link to a copy via one of their websites. It is in my view simply unacceptable that such an important document, apparently still currently being used by ‘Designated Doctors’, is still under ongoing consideration or being reviewed by MSD. Hence I would expect that a more current version will be made available to the public in the very near future.”

After stating his points and outlining his position the requester asked the Ombudsman to investigate the issues relating to the request and the unsatisfactory responses, and to recommend to the Ministry, that they make available the asked for information to him.

A PDF copy with the authentic text of that complaint letter to the Ombudsmen, dated 3 Dec. 2016, only partly anonymised, can be found via this hyperlink:
Ombudsman, complaint, MSD, OIA rqst, info withheld, Des Drs, DDr Guide, anon, 03.12.16

 

PART 8: MSD’s LATE RELEASE OF THE OUT OF DATE ‘GUIDE FOR DESIGNATED DOCTORS’ ON 8 NOV. 2017 – ONLY AFTER INTERVENTION BY THE OMBUDSMAN

After much more correspondence between the Office of Ombudsmen and himself, between the Ombudsman and MSD, it was suddenly and finally on 8 Nov. 2017, that the requester would by way of a short and ordinary email from MSD’s ‘Ombudsman and Privacy Complaint Services’ be sent a copy of the ‘Guide for Designated Doctors’, being an issue from July 2008! The email writer made clear also, that the document was now out-of-date.

He was not that excited and happy though, as the Ombudsman had apparently accepted that this was all that MSD should be expected to make available to him under the OIA, in response to his requests of 1 Oct. 2014 and 27 Sept. 2016. The copy was basically the same kind of document that he had already been presented years earlier, and it was beyond belief, that there would be no other ‘guidance’ material in use, to provide medical practitioners and health professionals working for WINZ as ‘Designated Doctors’ with information about how to examine, assess and certify beneficiaries with health conditions and/or disabilities.

An authentic, partly anonymised copy of MSD’s email of 8 Nov. 2017 can be found via these hyperlinks:
MSD, OIA Rqst, 27.09.16, Guide f. Design. Doctors, email reply, anon, 08.11.2017
MSD, OIA Rqst, 27.09.16, Guide f. Design. Doctors, email reply, anon, hi-lit, 08.11.17,

The ‘Guide for Designated Doctors’ document released by MSD under the OIA on 8 Nov. 2017 can be found by clicking the following hyperlink:
WDB6 Guide for designated doctors_FINAL

 

PART 9: MSD’s PREVIOUS RELEASE OF THE SAME KIND OF ‘GUIDE’ – WITH AN OIA RESPONSE IN MARCH 2011

What is totally bizarre is the fact, that the same ‘Guide for Designated Doctors’ had already been released to the information requester years before in late March 2011. That was in response to OIA requests he had sent to MSD on 29 Dec. 2010 and on 13 Jan. 2011. The then Chief Executive Peter Hughes appeared to see no reason to withhold or refuse that document, which has not changed in contents since it was published in 2008, as far as we can gather.

Also was the OIA requester able to download a copy of that same document on or around 18 April 2011, apparently from the web, quite probably even from the MSD or WINZ website, where it may once have been available.

Here is a hyperlink that will load an older OIA response by MSD from late March 2011, which had an identical issue of the ‘Guide to Designated Doctors’ sent with it, thus made available to the information requester years earlier (see list of documents on page 7 of 8):
MSD, O.I.A. request, Design. Drs, MAB appeals, RHAs, RDAs, C.E.’s response, March 2011, re anonymous

Also had a reprinted copy of the same edition been made available some time before:
https://nzsocialjusticeblog2013.files.wordpress.com/2015/03/msd-work-income-guide-for-designated-doctors-current-downloaded-18-04-2011.pdf

 

Author’s further comments

We ask ourselves, why were MSD so reluctant to make that ‘Guide’ available since then? We know that Peter Hughes was appointed as Chief Executive at MSD under the previous Labour led government. He had a 35 year career at the Department of Social Welfare and at the Ministry of Social Development, last as Chief Executive, being for ten years until 2011:
http://www.ssc.govt.nz/author-biography-peter-hughes
(info as at 23 June 2017)
https://nz.linkedin.com/in/peter-hughes-2345523b
(link inserted 01 April 2018)

The last National led government (2008-2017) would have set its own priorities as to what it would have expected of any new CEO appointment by the State Services Commission:
http://www.ssc.govt.nz/appt-process
“The State Sector Act specifies separate roles for the Government and the Commissioner in the appointment of chief executives:
The Government specifies its priorities in relation to chief executive positions; ..”

(as at 6 Jan. 2011)

So any newly appointed Chief Executive would have had to meet the ‘priorities’ the then new government had, signalling a change once Mr Hughes moved on from MSD. It appears that a new kind of approach to information management was taken soon after his departure, so that only less transparent information was made accessible under the OIA. Anecdotal evidence supports this, so does a report by the former Chief Ombudsman Dame Beverley Wakem, released late in 2015, which can be found via this hyperlink:
http://www.ombudsman.parliament.nz/system/paperclip/document_files/document_files/1573/original/not_a_game_of_hide_and_seek_-_review_of_government_oia_practices.pdf?1466555782

Some have thought that her Office’s investigation into the compliance with the OIA by government agencies did not dig deep enough, and was not comprehensive enough:
https://www.nbr.co.nz/opinion/nz-politics-daily-erosion-integrity-2015

We also ask, why was the ‘Guide for Designated Doctors’ released only now, after Ombudsman Donnelly looked into the matter, following a complaint about MSD and their responses to OIA requests made on 1 Oct. 2014 and 26 Sept. 2016? It would appear that MSD withheld that document without good reason. It was deemed to be ‘under review’ for years, and there has not been any new ‘Guide’ published since. So MSD have either been rather ‘slack’ in working on a new guide, or they had instructions not to rush with this, possibly preferring to leave people in the dark about how they work with Designated Doctors.

I would again recommend this post, as it shows, that there were major changes made from 2007/2008 on, in the way WINZ worked with Designated Doctors and with clients and applicants who required medical certification for the purpose of establishing their health conditions, impediments, disabilities and ability to work:
https://nzsocialjusticeblog2013.wordpress.com/2013/12/28/designated-doctors-used-by-work-and-income-some-also-used-by-acc-the-truth-about-them/

It would appear, in our humble view, that MSD have decided not to publish any formal, documented, clear ‘guidelines’, or even any document like the ‘Work Capability Assessment’ (WCA) used in the UK. The Ministry seems to prefer working with an assessment regime, where they can use absolute discretion in dealing with such matters on a case by case basis. That would protect them from many legal challenges, as individual clients may find it very difficult to make an appeal to the Medical Appeals Board, or even apply for judicial review to the High Court. Those are the ONLY options left for persons who may not agree with a WINZ decision made upon a doctor’s or other health professional’s assessment presented to them. To take such actions requires a lot of insight into and understanding of the system, it requires medico legal knowledge, requires access to reports and other information that was recorded, and it would involve a lot of effort and work to even prepare any challenge. Most will find such a task daunting, without any assistance by a legal advisor and representative, and may thus rather resign to the dictate they may face by MSD and the people they appoint as Designated Doctors and also as Medical Appeals Board panel members.

Having an openly accessible ‘Guide’ document for Designated Doctors, and for possibly also other medical and health practitioners to follow, that risks MSD being challenged on the particular advice, expectations, guidance and other criteria contained in it.

For information on the WCA, check out the following links:
https://en.wikipedia.org/wiki/Work_Capability_Assessment
https://www.gov.uk/government/publications/work-capability-assessment-handbook-for-healthcare-professionals

 

PART 10: MSD’s CONFUSING COMMENTS RE ‘GUIDES’ FOR MEDICAL PRACTITIONERS IN ANOTHER OIA REPLY FROM 3 FEB. 2017

Further questions arise from an older OIA response by the Ministry of 3 February 2017, which we could even access via the Work and Income website, where they have until Sept. 2017 been publishing at least some information responses, which appears to have happened only upon advice by the Chief Ombudsman, who was determined to improve the OIA processes when taking Office a year or two ago.

In that particular response, being to an OIA request made on 17 Jan. 2017, the Ministry gave some peculiar explanations about how it now works with medical practitioners.

The unidentified requester asked for:
“A copy of the following document – “Guide for Medical Practitioners – Disability Allowance”” and:
“A current list of titles of guidance documents provided for medical practitioners.”

After some general ‘nice talk’ about how the Ministry ‘depends’ on assessments by various medical and health practitioners, who all need to be appropriately qualified and registered, Elisabeth Brunt, General Manager, Ministerial and Executive Services, wrote the following:

“Your request for the ‘Guide for Medical Practitioners – Disability Allowance’ is refused under section 18(e) of the Official Information Act, as this document does not exist.”

The Ministry does not supply medical practitioners with guidance documents or a list of guidance documents available. However, there is information available for medical practitioners on the Ministry website. Additionally, medical practitioners can contact their local Health and Disability team at their nearest Work and Income regional office on 0800 559 009 for further advice, if required.”

Then a list of links to publications and resources on their website was offered.

Further explanations provided with that response was the following:
“Work and Income have established a panel of respected medical practitioners, known as ‘designated doctors’, to provide second opinions on medical information. The provision of a second opinion assists Work and Income to determine a person’s capacity for work and entitlement to financial assistance. It also assists with helping people to move towards employment. Further information regarding designated doctors is available online at: http://www.workandincome.govt.nz/providers/health-and-disability-practitioners/designated-doctors.html

“There is a guide for designated doctors, however, the status of the guide is that it is currently being updated and a refreshed guide will be available once this has occurred. As such, the guide for designated doctors is withheld under section 9(2)(f)(iv) of the Official Information Act, as it is under active reconsideration. The release of this information is likely to prejudice the ability of government to consider advice and the wider interest of effective government would not be served. “

Now, when reading this, the information requester who provided us with all this information, was reminded of the letter dated 23 Nov. 2016, which MSD had sent him, in response to his request of 27 Sept. 2016. They used very similar, if not identical wording, to explain why they could or would not release a copy of the ‘Guide for Designated Doctors’ (see PART 6 again).

The PDF with the authentic response by MSD, only partly anonymised and dated 3 Feb. 2017, can be loaded by clicking this hyperlink:
r-20170203-response-guide-to-medical-practitioners

The same OIA response by MSD is also available on their website, via this link:
https://www.msd.govt.nz/documents/about-msd-and-our-work/publications-resources/official-information-responses/2017/march/r-20170203-response-guide-to-medical-practitioners.pdf

 

PART 11: MSD RELEASE A NEW CURRENT LIST OF DESIGNATED DOCTORS – UPON ADVICE BY THE OMBUDSMAN

It was a pleasant surprise to the information requester, when he received a letter from Ombudsman Leo Donnelly, dated 15 March 2018, in which he indicated he considered that MSD should release the Designated Doctors list. That appears to have been decided after the Office of Ombudsmen consulted on this with the Office of the Privacy Commissioner (OPC).

An authentic scan copy of The Ombudsman’s letter, partly redacted and dated 15 March 2018, can be found in PDF files by clicking these hyperlinks:
Ombudsman, complaint, 44xxx8, MSD, OIA rqst, Wk to Welln., MHES, Des. Drs, prov. opinion, anon, 15.03.18
Ombudsman, complaint, 44xxx8, MSD, OIA rqst, Wk to Welln., MHES, Des. Drs, prov. opinion, anon, hilit, 15.03.18

It only took a few days until MSD responded to the OIA requester by sending him an email on 20 March 2018, which had that very information attached in an Excel file. The information did not show address and contact details, which must have been a condition set by the OPC.

Authentic anonymised scan copies of that email can be found by clicking the following links:
MSD, OIA Rqst, 27.09.16, MHES, Wk to Wellness, Des. Drs, further email resp., anon, 2 p., 20.03.18
MSD, OIA Rqst, 27.09.16, MHES, Work to Wellness, Des. Drs, furter resp., hilit, anon, 2 p., 20.03.18

To view the authentic current list of WINZ’s Designated Doctors, which has been created by way of file conversion from the original Excel file, released by MSD on 20 March 2018, click the following hyperlinks that will load the relevant PDF files:
List_of_Designated_Doctors,_reformated_but_authentic_copy, fr. MSD, as on 20.03.18
List_of_Designated_Doctors,_resorted,_reformated,_by_city,_fr._MSD,_20.03.18

For a redacted version of an older Designated Doctors list, which was made available by MSD to an OIA requester in August 2012, you can click this link to view a PDF that was created from the same data then contained in MSD’s ‘Designated Doctors Master List’:
MSD,_Designated_Doctor_List,_complete,_core_data,_as_on_20.08.2012
(some data showing address, phone and other details was deleted due to privacy concerns)

You can compare both lists and find that a fair number of former ‘Designated Doctors’ are no longer active as such, and questions may be asked about their reasons. There appear to be a few new names though, which should not surprise us after over 5 years of time.

When you wish to make use of the information in that list, please do so responsibly and appropriately, and refrain from any forms of harassment or other illegal conduct. While there is justified concern about the way Designated Doctors work for and with WINZ and MSD, especially with their so-called Principal and Regional Health and Disability Advisors, any concerns and grievances an affected person may have should be dealt with by first consulting a beneficiary advocate, legal advisor or other suitable support person. There are options to take matters to a ‘Medical Appeals Board’ (MAB), and to prepare for that, we recommend reading and studying this earlier post, which will to the most still be current and relevant:
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

It pays to prepare well for making an appeal to have a matter dealt with by such a MAB, and much care and caution is recommended when preparing submissions. Always go with a support person or even representative agent, and if that process does not succeed, the only way to challenge a decision made upon such a hearing is judicial review to the High Court. For that you will most definitely need to find and talk to a qualified lawyer, at first perhaps seek initial advice through a Community Law Office.

For the rest we must refer you back to the post mentioned already, to inform yourself about Designated Doctors and how they appear to be operating within the MSD and WINZ ‘second opinion’ and ‘assessment process’ framework:
https://nzsocialjusticeblog2013.wordpress.com/2013/12/28/designated-doctors-used-by-work-and-income-some-also-used-by-acc-the-truth-about-them/

 

PART 12: CONCLUSION: SECRECY, OBFUSCATION, APPARENTLY INTENDED CONFUSION AND UNCERTAINTY

To summarise our findings and thoughts on all of the above, we can only come to the conclusion, that MSD are making huge efforts to protect themselves, especially their Designated Doctors, their Principal Health and Disability Advisor, and their Regional Health and Disability Advisors from as much scrutiny by the public as they can. That is in relation to the particular ways they work with WINZ clients and benefit applicants, who have serious health conditions, injuries and disabilities, and who are dependent on benefit support.

There is no other explanation for this determined effort to refuse making available to the public such a simple, mostly acceptable document like the ‘Guide for Designated Doctors’. We do actually have access to much more in the way of documentation that could ‘prejudice the ability of government to consider advice’, more so than that ‘Guide’, as they choose to describe it. We do have some information that could hamper what MSD and WINZ may be preparing already, to put into a new ‘Guide’ in the future, but we choose not to ‘prejudice’ them and their actions. Let them present their ‘work’ first, so we can expose the tricks they may try and use, to deny sick, incapacitated and disabled persons needing benefit support access to much needed information, and access to their rights. The same information available to us would potentially throw a big spanner into the works of MSD, who are making ever so newer attempts to deny persons a truly fair and reasonable treatment by medical examiners, assessors, by Designated Doctors, their Advisors and WINZ case managers at the coal face.

The above OIA requests, the responses by MSD, some correspondence with the Ombudsman, and much more at our hands, shows how the Ministry tried repeatedly to block access to any information about their Designated Doctors, altogether that is, which would be like allowing the Medical Council to keep secret all information about the practitioners registered with them, by not even disclosing their names and scopes of practice. So at least in this case the Ombudsman realised that the Ministry was wrong in their attempts to block access to the information that was sought, and asked them to release it. That though is no reason to rejoice, as the Ombudsmen themselves have shown to only insist on information releases in some cases, often rather granting the government agencies the benefit of the doubt on their decision.

It becomes clearer now that MSD have chosen to withhold, or to not even create, any documentation on the way they work with Designated Doctors, or with any other assessors commissioned by them. They refuse to disclose how existing clients or new applicants should be examined, assessed and medically certified. While there are of course Codes and Rules that any medical practitioner and other health professional has to abide by and work under, we have today less information about how WINZ works with those mentioned professionals, than we had a few years ago. There have been comments made, such as, that medical practitioners should not have to determine whether a person can do certain work, or not. But when looking at the Work Capacity Medical Certificate, the person completing it is asked about whether a person can be expected to work more or less than 15 hours, whether he/she can return to work within a certain period, whether any treatment or supports may be needed, and so forth. So going by that, and other questions, medical professionals are still expected to make decisions on ability to work, which WINZ does of course use to decide on resulting work capabilities.

MSD do intentionally want to keep clients with health conditions and disability in the dark, same as the wider public, on how they advise, communicate and otherwise ‘guide’ Designated Doctors, which they clearly do through the Principal Health and Disability Advisors, and the Regional Health and Disability Advisors. Health and Disability Coordinators are also involved. They would not have created all those positions, if they were not intent on offering ‘guidance’ to Designated Doctors and other medical practitioners or health professionals. The fact seems to be, they do all this behind the scenes, on a case by case basis, under endless discretion, so that no one case can be treated as another, thus they ensure that it is almost impossible for outsiders to assess and establish, what directions, what criteria, what expectations and so forth are communicated to the medical profession. ‘Designated Doctor training’ is now also happening on an ad hoc, yet ongoing basis, partly online, partly in person to person communications by certain Advisors with the persons they ‘train’ (e.g. Designated Doctors), either by phone or face to face. It would be interesting to see whether any person can extract some OIA info from MSD on that, but it may require some information on who does what at a certain time, to nail such a request down to some specific details. The way they now operate makes it very difficult to get any specific information.

Hence this situation leaves most affected persons in much uncertainty, even in confusion about how their own case was in the past decided on, or how it will in future be decided on by WINZ and/or trained Designated Doctors. They will be left in uncertainty as to how they can perhaps best prepare and protect themselves from incorrect, inappropriate, poor and flawed ‘assessments’ by third party assessors like Designated Doctors. They will have to be guarded against questionable decisions made by a WINZ Case Manager acting upon advice by a Regional Health or Disability Advisor, who will in most – if not all – cases rely on the ‘advice’ received by way of a report, and perhaps additional information, which they received from a client’s or applicant’s own doctor or specialist, and/or a third party assessor, such as a Designated Doctor. We know that WINZ also likes to get clients sign consent forms, so their Case Manager, or at least the Regional Health or Disability Advisor, can contact their own general practitioner or even specialist directly. In such situations we would advise persons to apply to WINZ and MSD under the Privacy Act 1993 to get access to the particular details that were being discussed, in the form of records of this, which is personal information of the individual concerned. WINZ staff must under the Public Records Act keep correct and detailed enough records of such communications.

The situation is one that does not raise much hope, as it leaves the affected persons even more vulnerable than they may already by without having to apply for WINZ benefits and support.

In publishing this post, we do hope to shine more light on this increasingly appalling ‘welfare’ or ‘social security system’ we are confronted with, so that enough people are at least informed of what goes on. We will not tire from this, and continue to dig and expose as much as we can in the near future. As health and other factors put a limitation to what we can do, we appreciate patience and understanding, as few others have the time, energy and interest to do this work. So for now, take care, be prepared, stay calm and do all that is needed to hold the Ministry of Social Development AND the Government of the Day to account.

 
 

Marcus

 

Post edited and updated on 2 April 2018

 
 

Here is a downloadable PDF copy with the same post as above, which some may find easier to read. If the links in that document may not work for you, go back and use this online version, please:
MSD Release Outdated Guide f. Design. Drs And Current Design. Drs List, Post, 02.04.2018

 
 

ADDENDUM – 30 APRIL 2018:

THE OMBUDSMAN’S FINAL OPINION ON COMPLAINT 44XXX8, AS RELEASED ON 27 APRIL 2018, THUS MORE INFO IS YET TO COME

 

Here is the most recent response by the Office of Ombudsmen, or rather Ombudsman Donnelly, giving his final opinion on complaint matter 44xxx8, also covering the above information.

There is obviously more info to be expected from MSD, which may perhaps be covered also in another post on this blog, at some time later. The complainant will keep us posted.

The letter by the Ombudsman is self explanatory, and a scan copy of it can be found via the following links:
Ombudsman, complaint, 44xxx8, MSD, OIA rqsts, Wk to Wellness, Des. Drs, fin. opinion, L. Donnelly, anon, 27.04.18
Ombudsman, complaint, 44xxx8, MSD, OIA rqsts, Wk to Welln., Des. Drs, fin. opinion, L. D., anon, hi-lit, 27.04.18

 

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MSD RELEASE OIA INFO ON FAILED MHES TRIALS THREE YEARS LATE, ONLY UPON ADVICE BY THE LONG UNDERFUNDED, HALF COMMITTED NZ OMBUDSMAN


MSD RELEASE OIA INFO ON FAILED MHES TRIALS THREE YEARS LATE, ONLY UPON ADVICE BY THE LONG UNDERFUNDED, HALF COMMITTED NZ OMBUDSMAN

 

A report on how the New Zealand Ombudsman ‘investigated’ an Official Information Act 1982 (OIA) complaint about the Ministry of Social Development (MSD) after a two year delay, and then advised MSD to release at least some formerly refused information, also proving that Mental Health Employment Services (MHES) trials failed to deliver!

Published: 28 January 2018

 

CONTENTS:

PART 1 – INTRODUCTION
PART 2 – THE OIA REQUESTS MADE TO MSD ON 1 OCT. 2014
PART 3 – MSD’S FIRST REPLY TO THE OIA REQUESTS, DATED 31 OCT. 2014
PART 4 – THE COMPLAINANT’S ‘DELAY COMPLAINT’ TO THE OFFICE OF OMBUDSMEN, DATED 13 DEC. 2014
PART 5 – MSD’S FIRST RESPONSE TO THE OIA REQUESTS, DATED 26 FEB. 2015, MISSING IMPORTANT ASKED FOR INFORMATION
PART 6 – THE OMBUDSMAN’S INITIAL DECISION ON THE ‘DELAY COMPLAINT’, DATED 5 MARCH 2015
PART 7 – THE COMPLAINANT’S FURTHER OIA COMPLAINT TO THE OFFICE OF OMBUDSMEN, DATED 9 MARCH 2015
PART 8 – THE OMBUDSMEN OFFICE’S CORRESPONDENCE FROM 13 JUNE 2015 TO 21 DEC. 2016 – AND ENDLESS DELAYS IN THE MATTER
PART 9 – THE OMBUDSMEN OFFICE’S LATE ANNOUNCEMENT OF 8 MAY 2017 TO INVESTIGATE THE COMPLAINT
PART 10 – THE OMBUDSMAN’S PROVISIONAL OPINION ON THE COMPLAINT, DATED 24 OCT. 2017
PART 11 – THE COMPLAINANT’S FORMAL RESPONSE TO THE ‘PROVISIONAL OPINION’, DATED 28 OCT. 2017, INSISTING THAT MORE INFORMATION BE MADE AVAILABLE
PART 12 – THE OMBUDSMAN’S FINAL OPINION, DATED 14 NOV. 2017, IGNORING MOST OF THE APPEALS BY THE COMPLAINANT
PART 13 – THE COMPLAINANT’S REMAINING CONCERNS AND THE OMBUDSMAN INVESTIGATOR’S EMAIL OF 16 NOV. 2017, CONFIRMING THE FILE WILL BE CLOSED
PART 14 – MSD’S FURTHER INFORMATION RELEASE OF 22 NOV. 2017, SHOWING HOW MHES TRIALS WERE A FAILURE
PART 15 – CONCLUSION: THE OMBUDSMAN LARGELY LETS OFF MSD ON MATTERS OF SERIOUS CONCERN, AND TAKES NO FURTHER ACTION DESPITE OF SIGNIFICANT OIA BREACHES

 
 

PART 1 – INTRODUCTION

The information requester in this interesting matter had made some earlier OIA requests to MSD, where he had sought information on the way sick and disabled on health and disability related benefits were being examined and assessed for ability to work, and on what ‘services’ the Ministry provided in various forms, to ‘assist’ particular groups of beneficiaries into open employment. In order to obtain further information on newly announced, and also on some existing services, the requester sent another OIA request to MSD on 1 October 2014.

He asked mainly for new information about so called ‘Mental Health Employment Services’ (MHES), ‘Sole Parent Employment Services’ (SPES), and ‘Work Ability Assessment’ (WAA) services, for which MSD and Work and Income had entered contracts with a number of providers. He asked about the fees being paid, about ‘wrap around services’ being offered by providers, about numbers of clients referred, about medical problems those referred with health conditions and disabilities may have suffered, about expectations placed on sick and disabled on benefits, about targets and outcomes expected of the providers of services.

The requester also asked for information on sanctions imposed on beneficiaries who had refused to meet set obligations, and he asked for information on how many benefit recipients had their benefits terminated due to self harm, suicide or early death. Information was also sought on advice given and expectations communicated to medical practitioners who would examine and assess clients for health conditions and work ability for MSD. Information on threats, assaults and the likes by beneficiaries towards staff was also requested, same as on how many clients had been trespassed for certain periods of time. And last not least, a resource manual called ‘Medical Appeals Board – a resource for Board Members’ or its replacement was also requested, same as info about a ‘Guide for Designated Doctors’.

Although the requester asked for a response within the stipulated 20 working days, he was aware that he had made a comprehensive OIA request, so he prepared himself for the Ministry requesting extra time for its response. Initially MSD would only send a brief email acknowledgment of his request, dated 2 Oct. 2014, but a request for extended time to answer the OIA request came (by email and attached letter) on 31 October 2014, announcing that a final response would be with the requester no later than by 28 Nov. 2014. That deadline passed, and another email from MSD followed on 23 Dec. 2014, stating MSD were aware the response was overdue, and that they would ‘endeavour’ to provide one ‘as soon as possible’.

Already after the first extension deadline had passed, the requester wrote a delay complaint to the Office of Ombudsmen, which he sent in by email on 13 December 2014, because he had experienced repeated delays with MSD’s OIA responses. His initial OIA complaint would be decided on by 5 March 2015, with the Ombudsman Ron Paterson acknowledging MSD’s “failure to meet the requirements imposed by the OIA”, but also writing that he considered it unnecessary to take any further steps. This was due to MSD having finally sent their OIA response to the requester on 26 Feb. 2015.

While MSD provided a fair amount of the information that the requester had sought, the Ministry (MSD) left a few requests unanswered, and unreasonably refused some other information. Hence the requester wrote a further complaint to the Ombudsmen, dated 9 March 2015. He raised his concerns that a number of requests had not been completely and appropriately answered, and he asked the Ombudsman to continue investigating the matter, as MSD failed to provide information that he should have reasonably been able to expect.

After receiving a slightly confusing email update on his complaint dated 13 June 2015, and an update with a re-assessment report dated 31 August 2015, stating that the complaint was ‘queued for allocation’ to an Investigator in Christchurch, the complainant would not note any progress with it until 8 May 2017. A new investigator in the Auckland Ombudsmen Office would finally pursue the matter further with MSD, but in a letter of 16 May 2017 she informed the complainant that not all of the issues he had raised could be dealt with under the OIA. The investigation that followed then resulted in a provisional opinion dated 24 Oct. and the final opinion of Ombudsman Donnelly dated 14 Nov. 2017. The complainant raised remaining concerns and provided further comments in letters of 28 Oct. and 16 Nov. 2017.

MSD agreed with the Ombudsman to release only some additional information to the requester. Firstly the requester and complainant would receive an email on 8 Nov. 2017, having an out-dated copy of the ‘Guide to Designated Doctors’ attached, and on 22 Nov. 2017 MSD sent him some ‘further information’, in response to Requests 2, 4 and 7 of 1 Oct. 2014. Some of this did at least reveal that the formerly announced MHES trials, which the Ministry had run, had been a clear failure. For the remainder of the complaint the Ombudsman wouldn’t accept that MSD had otherwise failed in its duties under the OIA in meeting certain other requirements, and he decided to close the file, despite of the requester’s expressed dissatisfaction about the final outcome. It was clear that MSD had breached the OIA in respect of a number of aspects raised with the complaint, but it appeared the Ombudsman could not be bothered with thoroughly reviewing the file.

The details about the requests made, and about the slow progress of the 2 years delayed investigation by the Office of Ombudsmen will be presented in the following, with the authentic, partly anonymised correspondence and documents made available via hyperlinks.

This report shows yet again, how years of under-funding of the over-worked Office of Ombudsmen led to totally unacceptable delays, and how the Ombudsman would in the end be only half-committed to achieve a final and acceptable outcome for the complainant. It raises serious concerns about the way OIA requests are handled by ministries and their departments, and how poorly the Ombudsmen ‘resolve’ some complaints by concerned New Zealanders.

 

PART 2 – THE OIA REQUESTS MADE TO MSD ON 1 OCT. 2014

On 1 October 2014 the information requester made a comprehensive, written request to MSD, seeking a wider range of information under the OIA. He asked for new information about so called ‘Mental Health Employment Services’ (MHES), ‘Sole Parent Employment Services’ (SPES), and ‘Work Ability Assessment’ (WAA) services, for which MSD and Work and Income had entered contracts with a number of providers. Besides of details about the providers’ addresses the requester asked for details about the services being offered.

The requester asked for information about fees being paid, about outcome expectations, about so-called ‘wrap around services’ that appeared to also be offered by providers. He asked about the numbers of clients being referred to MHES, SPES and other services delivered by providers, about job placements of referred clients, about medical problems some of the referred persons with health conditions and disabilities may have suffered, and what was done then. He asked for information about work ability and medical assessments, about expectations that were placed on sick and disabled on benefits, and about the targets and outcomes that MSD expected of the providers of the above mentioned services.

The requester also asked for information on sanctions imposed on Jobseeker Support (deferred) and Supported Living Payment (SLP) beneficiaries who had refused to meet certain obligations, and he asked for information on how many such benefit recipients had their benefits terminated due to self harm, suicide or early death. Information was also requested on advice given and expectations communicated to medical practitioners who do examine and assess clients for health conditions and for work ability for MSD. Other information on threats, assaults and the likes – by beneficiaries towards staff – was also requested, same as on how many clients had been trespassed for certain periods of time. Lastly a resource manual called ‘Medical Appeals Board – a resource for Board Members’ was also requested, same as information about a ‘Guide for Designated Doctors’.

An authentic text of the complete request letter, with the various points of request, and other relevant information, dated 1 Oct. 2014, with some personal information redacted, is found via this hyperlink:
MSD, OIA request, MHES, WAA, other support services, issues, questions, anon, 01.10.2014

Here is a link to a media report in the Herald on Sunday of 30 June 2013, which revealed plans of the NZ Government to shift mentally ill into work, using programs such as MHES:

Govt will pay to shift mentally ill into work, Herald on Sunday, 30 June 2013:
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10893823

 

PART 3 – MSD’S FIRST REPLY TO THE OIA REQUESTS, DATED 31 OCT. 2014

Initially MSD sent the requester a brief standard reply email, which was on 2 October 2014, and which simply informed him that the request had been forwarded to the ‘appropriate officials’ at National Office.

On 31 Oct. 2014 MSD wrote to the requester, informing him “that the Ministry will provide a response but needs to extend the time available to answer your request”. The Ministry’s response would be with the requester no later than by 28 Nov. 2014, so did Elisabeth Brunt, General Manager Ministerial and Executive Services, write in that letter. As a reason she stated that the Ministry would need further time to consult with other parties on the release of the information that had been requested.

An authentic scan copy of that letter, dated 31 Oct. 2014, party redacted to protect the privacy of the requester, can be found via the following link:
MSD, O.I.A. request, MHES, WAA, other supported services, issues, 1.10.14, 1st reply, anon, 31.10.14

 

PART 4 – THE COMPLAINANT’S ‘DELAY COMPLAINT’ TO THE OFFICE OF OMBUDSMEN, DATED 13 DEC. 2014

After MSD had more or less promised that the requester would get a response to his requests by 28 Nov. 2014, nothing happened for weeks to come. He waited for another two weeks, to give MSD a chance to respond a few days late, after the deadline which the Ministry had set itself. But as it had happened before on a number of occasions, no correspondence came forth.

Hence the complainant decided to write to the Office of Ombudsmen, and with a letter dated 13 December 2014, sent by email, he filed a complaint about MSD, because the Ministry had failed to comply with the provisions of the OIA, as their response was now well overdue. He asked the Ombudsman to raise this with MSD, and to investigate the matter. He mentioned also that there were at least two other complaint cases against MSD before the Ombudsman, where MSD had failed to provide him with reasonably sought information. As usual he attached the relevant earlier correspondence with MSD to his Ombudsman complaint letter.

On 17 Dec. 2014 the complainant received a first email confirmation for his correspondence from the Office of Ombudsmen, providing him with reference number 39xxx4. A mention was made of ‘a large number of enquiries’, and so forth, and he was informed that his complaint was currently at the initial assessment stage. On 16 Jan. 2015 the complainant did then also receive a letter by Prof. Ron Paterson, Ombudsman, updating him on his ‘delay’ complaint. He informed the complainant that he was making enquiries of the Ministry and would write to him again shortly.

A PDF with the authentic text of that complaint by the information requester, partly redacted, and dated 13 Dec. 2014, can be found via this hyperlink:
Ombudsman, complaint, MSD, failure to comply w. O.I.A. rqst fr. 01.10.14, ltr, anon, 13.12.2014
A PDF with a scan copy of the authentic, partly redacted, email by the complainant, carrying that complaint, of 13 Dec. 2014 can be found via this link:
Ombudsman, complaint, MSD, OIA rqsts, 1.10.14, failure to respond, complainant email, 13.12.14
A PDF with a scan copy of the first formal response letter by Ombudsman Ron Paterson, dated 16 Jan. 2015, can be found via this link:
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, MHES, etc., refusal, Ombudsman’s ltr, 16.01.2015

 

PART 5 – MSD’S FIRST RESPONSE TO THE OIA REQUESTS, DATED 26 FEB. 2015, MISSING IMPORTANT ASKED FOR INFORMATION

After the Ombudsman Ron Paterson had informed the complainant and information requester by way of a letter dated 16 Jan. 2015, that he was making inquiries with MSD re his complaint, and that he would respond again soon, the requester did on 26 Feb. 2015 get a formal email response from MSD, providing a fair amount of the requested information.

But upon reading and analysing the information that was presented to him in an attached letter, he noted that some important and potentially sensitive information, which he had sought, had simply not been provided. While some information had been refused with references to refusal grounds provisions in the OIA (section 18), other information was simply not provided, without any explanations or reasons having been given.

Nevertheless, the Ministry provided some useful information on the head-office addresses of SPES providers, being in response to request 1, but at the same time referred to an earlier response of 24 April 2014 for the same information on MHES providers. Also provided was some information on the ‘fee structure’ for SPES, and again was a reference made to an earlier response of 24 April 2014, for fees MSD pays to providers of the MHES, which was in response to OIA request 2.

Not much useful information was provided in reply to request 3 regarding ‘wrap around services’ being offered to participants of MHES and other services, but it appeared that relevant providers would simply refer persons needing additional health-, disability- and addiction services to ‘existing health and clinical support’ service providers, like perhaps hospitals, special clinics or perhaps counselling services (without providing details). No information was provided on roles and qualifications of staff working for service providers.

Some information was provided in response to request 4 on MHES and SPES referrals and on persons approached to participate, and also did two tables provide details for some persons exiting the MHES and SPES for a variety of reasons. But figures in the tables were only shown for ‘As at the end of October 2014’, leaving the requester with some lack of clarity.

The Ministry refused information pertaining to the well-being of beneficiaries after their referral to service providers, as it wrote it would not record such data (OIA refusal section 18(e)). See request 5 for the original question and request put to the Ministry. Also was no new information provided about WAA service providers and the services they deliver, which had been asked for with request 6. Once again, the requester was referred back to the Ministry’s 24 April 2014 response.

No new information was provided in response to request 7 and on what expectations Work and Income places on sick and disabled receiving health related benefits (Jobseeker Support – deferred, SLP), in regards to meeting obligations to attend external examinations/assessments done by Designated Doctors or WAA service providers, and instead the requester was yet again referred to an earlier response by MSD dated 24 April 2014. No information was given on ‘sanctions’ and a link to the Work and Income website appeared to lead to little useful information. Altogether sparse information was provided in response to request 7.

With OIA request 8 the requester had asked for information on ‘performance targets’, in regards to clients being referred to, or placed into employment or training, but this was poorly or insufficiently answered. Limited information was provided on staff ‘bonuses’ (none paid), ‘performance payments’ and ‘productivity dividends’, which were no longer being paid. MSD stated there were ‘no performance measures for staff to refer beneficiaries to contracted services’. But it also commented: ‘Work and Income monitors its business indicators’.

In response to request 9 a table was presented by MSD with some useful data on sanctions imposed against certain beneficiaries (Jobseeker Support – Health Condition and Disability and Supported Living Payment recipients) for certain time periods from Sept. 2013 to Dec. 2014. And in response to request 10 the Ministry used section 18(f) of the OIA to refuse information on persons who received a health and disability related benefit, and who had their benefits terminated, as a consequence of fatal self harm, suicide or unexpected early death.

The Ministry presented a poor and useless response to request 11, where the requester had asked for information on advice or expectations that MSD had communicated to medical practitioners and specialists, for them to consider when asking questions to their patients, and when assessing their health conditions and ability to work, as part of completing a Work Capacity Medical Certificate. MSD had been asked whether particular sets of questions had been sent or presented to GPs, whether particular criteria had been communicated, and so forth. Also was the Ministry asked where a ‘Guide for Designated Doctors’ could be found. Besides of a very general comment about medical practitioners providing assessments on health conditions and disability, and on ability to undertake suitable employment, a link to the start page of the Work and Income website was presented, telling the requester that “All guidance for medical practitioners on about the Medical Certificate is now provided online at: http://www.workandincome.govt.nz.

But there was more useful information presented in a large table, in response to request 12, showing data on incidents where case managers or other staff at Work and Income had felt threatened, intimidated, or were assaulted by angry clients, during the execution of their duties. The Ministry also explained in brief, how it dealt with such incidences of inappropriate behaviour, and how it placed a high priority on the safety of its staff.

Information on trespass orders and how Work and Income (WINZ) dealt with high risk persons was presented in satisfactory manner in response to request 13. And a ‘Medical Appeals Board, Board Members Information Pack’, dated July 2013, was also provided to the requester.

A scan copy with the authentic, complete written OIA response by MSD to the requester, dated 26 Feb. 2015, in partly redacted form, can be found as a PDF file via these hyperlinks:
MSD, OIA rqst, MHES, WAA, other support services, issues, reply, anon, 26.02.2015
MSD, OIA rqst, MHES, WAA, other support services, reply, anon, hilit, 26.02.15
A scan copy with the authentic earlier OIA response by MSD, to earlier requests, dated 24 April 2014 and partly redacted, can be found via this link:
MSD, O.I.A. reply, C.E., Mental Health Emplmt Serv., Work Ability Assmts, compl., 24.04.14

 

PART 6 – THE OMBUDSMAN’S INITIAL DECISION ON THE ‘DELAY COMPLAINT’, DATED 5 MARCH 2015

It was not long after the information requester had finally received MSD’s response dated 26 Feb. 2015, that the Ombudsman Ron Paterson also wrote to him again. He noted that MSD had sent the requester a response on 26 Feb. 2015. In his letter, dated 5 March 2015, he also informed the complainant that a decision on the information request of 1 Oct. 2014 should have been made by MSD by 30 Nov. 2014. The Ombudsman had formed his final opinion that there had been a “failure to meet the requirements imposed by the OIA” – by MSD. But he also wrote that he considered it “unnecessary” to take any further steps, mentioning that MSD acknowledged its failure, but was aware of its obligations under the OIA.

A PDF with an authentic scan copy of the letter by Ron Paterson, dated 5 March 2015, with some personal information deleted, can be found via these links:
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, delay + refusal, initial dec., 05.03.2015
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, delay + refusal, initial dec., hi-lit, 05.03.2015

 

PART 7 – THE COMPLAINANT’S FURTHER OIA COMPLAINT TO THE OFFICE OF OMBUDSMEN, DATED 9 MARCH 2015

Upon receiving the Ombudsman’s letter with his final opinion on the ‘delay complaint’, the complainant realised that he needed to present swiftly his concerns about the formal but unsatisfactory response by MSD of 26 Feb. 2015 to the Ombudsman. He considered it necessary that the Ombudsman should further investigate his complaint, which would now need to be changed from being a ‘delay complaint’ to a wider OIA complaint.

In the evening of 9 March 2015 he sent his formal complaint to the Ombudsmen Office by email, carrying the attached full new Ombudsman complaint letter, his request letter to MSD dated 1 Oct. 2014, a copy of MSD’s earlier OIA response to an earlier request, dated 24 April 2014, and a copy of MSD’s recent response, dated 26 Feb. 2015.

The information requester and complainant wrote that he had received a ‘fair amount of the information’ that he had sought, but that some very crucial, expected information that he had requested was not supplied by MSD, without any explanations. He pointed out and expressed his concerns that a number of requests had not been completely and appropriately answered, and that MSD unreasonably refused some other information. He asked the Ombudsman to continue investigating the matter, as MSD failed to provide information that he should have been able to reasonably expect.

So he listed his OIA requests 1, 2, 3, 4, 5, 6, 7, 8 and 11 as not having been responded to, that is in part. He also sought some clarifications on apparently unclear responses.

In short, the complainant’s main concerns and issues were:
Request 1: That no on-site addresses were provided for MHES and SPES service providers listed under request 1 (not even raising the issue that little information had been provided on ‘particular services offered’).

Request 2: That no information on ‘outcomes’ or ‘targets’ was provided by MSD on contractual agreements it had with providers, as asked for with request 2.

Request 3: That insufficient information had been provided on ‘wrap around services’ which providers were apparently offering, hence he sought further clarification on whether such services (in clinical form) would actually be provided through accessible public health care services through DHBs or not, in response to request 3. A question was whether any information on such additional support services had been withheld, did not exist or was not ‘centrally held’. Also was there no mention of particular qualifications and types of positions held by provider staff, which could be provided without naming individuals.

Request 4: That statistical data contained in tables provided in response to request 4 needed to be more clarified, i.e. presented in broken down figures, and that information be provided on how many MHES and SPES participants had been successfully referred into employment.

Request 5: That the response now provided to request 5, stating information on the ‘wellbeing’ of persons after being referred to a service provider would not exist (s 18(e)) conflicted with an earlier OIA response from 24 April 2014, and that an explanation and clarification needed to be given by MSD.

Request 6: That no on-site address details had been provided by MSD for WAA service providers, as asked for with request 6. The same issue and concern existed as with request 1.

Request 7: That no information had been provided by MSD in response to request 7 on ‘expectations’ WINZ places on sick and disabled on health related benefits – in regards to meeting obligations to attend external examinations/assessments for medical conditions and work ability. No information was given on what forms of sanctions would be applied by WINZ, hence further clarification was necessary. Also was there no information provided on any plans that may exist to change or increase particular expectations and/or criteria for sick, injured and disabled persons on health related benefits.

Request 8: That no specific performance target information (e.g. on successful referrals of clients into work, training and so forth) had been provided in response to request 8, and that further clarification or a better response was expected, given a senior MSD Director clearly mentioned ‘targets’ existed in a radio interview on Radio NZ.

Request 11: That insufficient and too general information has been presented in response to request 11, which asked for ‘advice’ and ‘expectations’ being communicated to health professionals. The information on the Work and Income website was not covering Advisor to practitioner ‘advice’ and ‘expectations’. Also had no source been provided for the ‘Guide for Designated Doctors’.

In his ‘Closing comments’ the information requester and complainant asked the Ombudsman to take up the issues he listed with MSD, to seek appropriate clarifications, and to ensure, that his reasonable requests for specified information were being met. He considered that a thorough investigation was necessary.

A PDF with the authentic text of this further complaint letter by the complainant, partly redacted, and dated 9 March 2015, can be found via this hyperlink:
Ombudsman, complaint, MSD, failure to comply w. O.I.A. rqst fr. 01.10.14, ltr, anon, 09.03.2015

Relevant attachments were also sent with the email carrying the complainant’s letter.

 

PART 8 – THE OMBUDSMEN OFFICE’S CORRESPONDENCE FROM 13 JUNE 2015 TO 21 DEC. 2016 – AND ENDLESS DELAYS IN THE MATTER

After some simple email requests for updates on a number of complaints, dated 25 April 2015 and 17 May 2015, the complainant did on 13 June 2015 receive an email with an update from a ‘Manager Intake and Assessment’ at the Office of Ombudsmen, which was somewhat confusing, due to a number of spelling mistakes and irritating comments. She referred to the complainant’s last email of 17 May.

In her email letter the correct reference number 39xxx4 was wrongly referred to as being a complaint “agasint hte Privacy Commissioner”, while it was actually against MSD. The name of an Investigator, to whom this complaint had been allocated, was mentioned. It appeared though as if the ‘Manager’ was commenting on two complaints, but simply mixed up relevant details about these. The correct complaint “agasint MSD”, as the author of the letter wrote, had according to her been assessed, but was yet to be allocated.

She declined the complainant’s request for that particular complaint to be progressed urgently, and she stated that their Office would not have sufficient investigative resources to do so. It was not considered that the complaint should have priority over other ones at hand. An update was promised if the complaint would not be allocated within six weeks.

A PDF with an authentic scan copy of the Manager’s original email letter, partly redacted for privacy reasons, and dated 13 June 2015, can be found via the following links:
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, MHES, etc., refusal, email upd., anon, 13.06.15
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, MHES etc., email update, anon, hi-lit, 13.06.2015

At 15.37h on 31 August 2015 the complainant received another email (from an unnamed sender) from the Ombudsmen Office, which had a letter attached (as PDF file), which was signed by Deputy Ombudsman Leo Donnelly.

In his letter he presented an update on complaint 39xxx4 and informed the complainant that they had undertaken a further assessment of his complaint, which was now due to allocation to an Investigator. But he wrote that “due to the large volumes of complaints” their Office was receiving, “there are delays in progressing some complaints”. He then continued and wrote, that the complaint was “now queued for allocation to an Investigator” in their “Christchurch Investigation and Resolution Team”. He added that the Manager in that Office would contact the complainant, when there would be progress to report.

A PDF file with an authentic scan copy of this letter by Deputy Ombudsman Donnelly, partly anonymised, and dated 31 Aug. 2015, is found via these links:
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, MHES, etc., assessment, ltr, anon, 31.08.2015
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, MHES etc., assessmt, update, ltr, anon, hi-lit, 31.08.2015

Following no apparent progress in this matter, and further requests by the complainant for an update on this and other complaints, dated or sent 5 and 28 July 2016, the ‘Manager – Investigations and Resolution’ at the Auckland Ombudsmen Office wrote back to him in a letter dated 23 August 2016.

He confirmed the complainant’s presumption that Ombudsman Leo Donnelly had assumed responsibilities for matters previously dealt with by the recently departed, former Ombudsman Ron Paterson.

By referring to file reference 39xxx4 Mr Sxxxxxx admitted that it was “far from ideal”, that only “limited progress” had been made. “However, the Chief Ombudsman is committed to eliminating this backlog”, he wrote.

They were currently developing a plan to progress their aged complaints, he informed the complainant. With specific funding from Parliament they expected to commence this plan from mid August 2016. File 39xxx4 would in future be dealt with from their Wellington Office, he added. The complainant would be updated on further progress “as soon as possible”, Mr Sxxxxxx wrote, and he asked for patience. Some further updates were provided for other complaints by the complainant.

A PDF file containing an authentic scan copy of this letter by the Auckland Manager at the Office of Ombudsmen, dated 23 Aug. 2016, and partly redacted, is found via these links:
Ombudsman, complaints, 39xxx4, and others, update, Auckland Office Manager’s ltr, 23.08.2016
Ombudsman, complaint, 39xxx4, and others, update, Auck. Office Mgr, ltr, hi-lit, 23.08.2016

On 21 Dec. 2016 the Manager at the Auckland Office of the Ombudsmen did write once again, providing new updates on a number of complaints, for which the complainant had again asked, apparently by emails sent on 8 and 17 Dec. 2016.

The Manager did again apologise for the delay, and thanked the complainant for his patience.

Re file reference 39xxx4 he informed the complainant that the file was still “queued for allocation to an investigator”. He wrote that the complainant would be informed “if there is any progress to report”. This time a name of a staff member at the Wellington Office was provided, should the complainant have any queries re his complaint. Other updates were given on a few other complaints.

A PDF file with an authentic scan copy of this email letter by the Manager for Investigations and Resolution at the Auckland Ombudsmen Office, partly redacted, dated 21 Dec. 2016, can be found via these hyperlinks:
Ombudsman, complaints, 39xxx4, and others, rqst f. update, Auckland Mgr’s email, 21.12.2016
Ombudsman, complaints, 39xxx4, and others, update, email, Auck. Office Mgr, hi-lit, 21.12.16

So time continued to pass, and the complaint had until the end of 2016 still not even been allocated to an Investigator! In the meantime MSD could relax and continue to withhold sensitive information on MHES and other services, which it had refused, or simply not provided without giving any reasons for this.

 

PART 9 – THE OMBUDSMEN OFFICE’S LATE ANNOUNCEMENT OF 8 MAY 2017 TO INVESTIGATE THE COMPLAINT

Having noted no progress at all with this complaint, and also not with another complaint, the complainant wrote to the Ombudsmen Office again at 15.08h on 5 May 2017, expressing his concern. He mentioned how some newer complaints appeared to now be investigated by the Wellington Office, but that he had not received any further correspondence re complaint 39xxx4 and the other one.

The complainant wrote that the delay with two OIA related complaints against MSD gave him reason to be very concerned. He wrote that there had been “ongoing issues with poor and not delivered OIA responses – provided by MSD”. Further delays in the investigation of aged complaints would mean that: “MSD may not feel urged to improve their responses to OIA requests for specific information that one should be able to expect for reasons of transparency and accountability”.

So he asked for another update on this one (39xxx4) and other complaints. Also did the complainant ask for confirmation, that emails and letters he had sent on 21 May and 25 August 2016 had also been added to this complaint (for consideration).

A PDF with an authentic scan copy of the complainant’s email asking for an update on complaint 39xxx4 and other complaints, partly redacted and dated 5 May 2017, can be found here:
Ombudsman, complaints, 39xxx4, and others, rqst f. update, complainant email, anon, 05.05.17

Well over 2 and a half years after the OIA request had been made to MSD, and well over two years after the filing of the formal complaints with the Office of Ombudsmen, did the complainant finally get some positive news at 11.28h on 8 May 2017.

A ‘Senior Investigator’ by the name of Bxxxxx Xxxxxx informed the complainant that the complaint file 39xxx4 had now been allocated to her to progress. She was working herself through the material on the file, and would contact him again in respect of it “when there is substantive progress to report”. She also provided an update on another complaint.

A PDF with an authentic scan copy of the response by the Senior Investigator at the Ombudsmen Office now handling the complaint, partly redacted and dated 8 May 2017, is found here:
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, complt update, investigator email, anon, 08.05.17
Ombudsman, complaint, 39xxx4, OIA rqsts, update, investigator email, anon, hi-lit, 08.05.2017

At 13.31h on 16 May 2017 the Senior Investigator then sent the complainant an email with a letter attached that was signed by her, and written on behalf of Ombudsman Leo Donnelly. She informed the complainant that Mr Donnelly would be investigating this complaint. She also wrote that she had written to the Chief Executive of MSD, and asked him to provide them with a report on their decision on the complainant’s OIA request, and to comment on the issues raised by the complainant.

The Investigator noted that not all issues that the complainant had raised in his letter of 9 March 2015 constituted OIA complaints. She listed the various request points that had been accepted as OIA complaints, and which had been notified to MSD. These included issues raised re MSD’s responses to requests 1, 2, 3, 4, 6, 7, 8 and 11. The complainant would be updated on the progress of the investigation, she wrote in closing.

A PDF with a scan copy of the authentic, partly redacted letter by the Senior Investigator, dated 16 May 2017, can be found via this link:
Ombudsman, complaint, 39xxx4, MSD, OIA rqst, MHES, other serv., refusal, invest. ltr, anon, 16.05.17

 

PART 10 – THE OMBUDSMAN’S PROVISIONAL OPINION ON THE COMPLAINT, DATED 24 OCT. 2017

At 20.32h on 20 August 2017 the complainant would send one more email to the Senior Investigator now handling this complaint, asking for a further update on the progress in this matter. He mentioned that the last correspondence he had received was of 16 May 2017.

The Senior Investigator Bxxxxx Xxxxxx wrote back at 9.48h on 21 August, informing him that: “We have made significant progress in addressing the OIA issues raised by this complaint (complaint 39xxx4) – we have been back and forward with the MSD a number of times to ensure that the Ombudsman has all the information he needs to go to a provisional opinion.” “There is just one further enquiry (made last week) about one of the aspects of this (wide-ranging) complaint that we are waiting to hear back from the Ministry about.”

“In respect of the other matter (Dr Bratt’s record-keeping) the Ombudsman will be addressing that issue in his provisional opinion on 39xxx4.”

After another two months the complainant did then finally get a ‘provisional opinion’ on this complaint matter, which was sent to him by email by the same Investigator at 11.07h on 24 Oct. 2017. It was contained in a PDF file and signed by Leo Donnelly, Ombudsman.

Mr Donnelly acknowledged the apologies by his staff for the unacceptable delays in the investigation of the complainant’s complaints. He added his apology for the delays in this case.

He had received and considered the Ministry’s response to the notified complaint matter. He repeated the Investigator’s earlier comments, that not all issues the complainant had raised constituted OIA complaints.

He presented his provisional opinion on each OIA ‘Request’ point, and the following is in brief what Ombudsman Donnelly had formed as his opinion:

Request 1:
He wrote that the Ministry had provided the complainant with a table containing the names and addresses of the SPES, and that the MHES providers’ information had previously been provided to him (on 24 April 2014). The Ombudsman acknowledged that the complainant had asked for on-site service delivery addresses, which had not been provided. He wrote that the Ministry had noted that it may not itself have been provided all the sites’ addresses used by providers. He added that the Ministry noted that the providers have websites which contain physical addresses, which are publicly available.

Ombudsman Donnelly then wrote: “In terms of the OIA, it is my provisional opinion that your request for this information can be refused under section 18(d) on the basis that it is publicly available, and section 18(g) where the Ministry does not actually hold the information.”

Request 2:
Regarding ‘fees payable’ by the Ministry to providers, and ‘outcome expectations’, Mr Donnelly referred the complainant to MSD’s OIA responses of 26 Feb. 2015 (for SPES), and 24 April 2014 (for MHES), which contained tables with fee structures and some other relevant information. He wrote that in response to the notified complaint, raising the issue with no information having been provided on ‘outcome expectations’, MSD had located relevant information and provided it to his Office. Hence he had now asked the Ministry to make that information available to the complainant.

Request 3’:
Regarding the request for ‘wide-ranging’ information about the ‘wrap-around services’, which the complainant had made to MSD, the Ombudsman now referred him again to the Ministry’s responses of 24 April 2014 and 26 Feb. 2015, which contained some asked for information, but also comments that MSD did not hold some particular information.

He wrote: “The Ministry has noted that this information is not collected in the manner you have requested and, referring to section 18(g)(i), it notes the Ministry is not required to create information.” Ombudsman Donnelly added that, upon having made enquiries, he was satisfied that section 18(g) provided the Ministry “with good reason to refuse your request on the basis that the information is not held.”

Request 4’:
Regarding the complainant’s issue with no clear enough information on clients referred to services like SPES and MHES, such as on them having been successfully placed into employment, having been presented by MSD, the Ombudsman referred him to information provided in MSD’s response of 26 Feb. 2015.

He wrote: “The Ministry provided you with details of the number of referrals up to the date of your request, and tables indicating numbers who ceased participation in the MHES and APEs and the reasons why”. Mr Donnelly then asserted: “You complained that information was not provided in the way you had wished and that no information was provided about participants of either service who have been successfully referred into employment”.

He wrote that the Ministry had (in response to the complaint) noted that, while the complainant’s preference may not have been addressed, the information was in fact provided. He accepted the Ministry’s response as “reasonable”.

In respect of information on placements into employment, the Ombudsman wrote, the Ministry had provided him with some ‘manually collated data’. Leo Donnelly wrote: “The Ministry has advised that it is happy to release this information to you. I have asked it to do so now and advise me accordingly when it has sent the information to you.”

Request 6’:
Regarding on-site service delivery addresses for WAA providers, which the complainant had asked MSD for; Mr Donnelly considered that the same position by MSD – as held to ‘Request 1’ – was acceptable. He wrote: “I accept that section 18(d) provides good reason under the OIA to refuse this part of your request on the basis that the information is publicly available”.

Request 7:
Regarding the complainant’s request for information on plans that the Ministry may have to “change or increase particular expectations and/or criteria for sick, injured and disabled persons…to be referred to …work ability assessments”, Mr Donnelly wrote that the Ministry had apologised and acknowledged that they had failed to respond to that particular aspect of his request.

He wrote: “The Ministry has undertaken to now respond to you about this request. I have asked the Ministry to do so and advise me accordingly.”

Request 8:
Regarding the concerns of the complainant re the response by MSD to request 8, Ombudsman Donnelly wrote that: “In response to notification of this aspect of your complaint, the Ministry notes that it has provided you with the information you requested.”

“I have considered your comments and the response provided by the Ministry to your request and to my notification of this complaint. Your complaint essentially seems to rest on what you see as a potential contradiction between the information provided by the Ministry and comments made on a radio programme. However, your comments about the radio programme reflect your interpretation and extrapolation. Under the OIA, my role is to ensure that, where information is held, it is released upon request unless the Act provides good reason to refuse it. It is not part of my investigation and review role to test the overall coherence of information provided from various different sources so that a ‘better response’ (in your words) is provided.”

Mr Donnelly then wrote that he did not consider that he could take this matter any further. In his view the Ministry had clearly answered the complainant’s request for information. He saw no grounds to consider it was withholding relevant official information from the complainant and the Ombudsmen’s Office.

Request 11:
Regarding the request for information on advice and expectations that MSD provided to health professionals when assessing work ability, the Ombudsman noted that the Ministry had referred the complainant to the website http://www.workandincome.govt.nz . He also appeared to acknowledge the complainant’s stated issue that certain forms of communicated advice, guidelines and expectations (e.g. by Regional Health, Regional Disability Advisers, Health and Disability Coordinators and the Principal Health Adviser) were not covered by the more general information on the website.

He then quoted the Ministry’s response to his notified complaint: “[t]he Ministry considers that further advice should have been refused under section 18(f) of the Act as there will not be a centralised repository of ‘advice to doctors’. Mr Xxxxxx requested ‘information on the advice, not the advice itself, and has been provided with this.”

Apparently accepting the Ministry’s comments as such, the Ombudsman wrote:
“In the absence of a central repository of ‘advice to doctors’ I accept that section 18(f) provides the Ministry with good reason to refuse the communications you refer to on the basis that the information cannot be made available without substantial collation and research. Privacy and confidentiality considerations may also be relevant. If there is a particular communication you are able to identify with due particularity I suggest you make a specific request for it.”

The Ombudsman concluded his provisional opinion with stating under ‘Resolution and my provisional opinion’:
“The issues discussed above in respect of Requests 2, 4 and 7 have been resolved by the Ministry’s agreement to release to you the further information it has provided to this Office. In my provisional opinion, for the reasons set out above, the Ministry was entitled to refuse your request for the information I have discussed in respect of Requests 1, 3, 6 and 11.”

Mr Donnelly invited the complainant to comment on his provisional opinion in respect of Requests 1, 3, 6 and 11 by 14 Nov. 2017, before he would form his final opinion.

He also made further comments in relation to ‘Record keeping by Dr Bratt’:
“In respect of your comments about Dr Bratt’s record keeping, I have read and carefully considered your comments of 21 May 2016 (resent on 25 August 2016). You have raised concerns about Dr Bratt ‘continually misrepresenting statistical and scientific information’ (and other concerns about Dr Bratt’s professional competency) as a response to Professor Paterson’s finding that you had an insufficient personal interest in the issue of Dr Bratt’s record-keeping. Moreover, concerns about Dr Bratt’s professional standards would most appropriately be addressed by his professional body, not by a layperson, such as myself.”

Hence, for the same reasons previously given by the former, long resigned Ombudsman Prof. Ron Paterson, Mr Donnelly did not propose to investigate the complainant’s complaint about Dr Bratt’s record-keeping.

A PDF file with an authentic scan copy, partly redacted, of the provisional opinion of Ombudsman Donnelly, dated 24 Oct. 2017, is found via these links:
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, refusal, prov. opinion, anon, 24.10.2017
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, refusal, prov. dec., anon, hi-lit, 24.10.2017

 

PART 11 – THE COMPLAINANT’S FORMAL RESPONSE TO THE ‘PROVISIONAL OPINION’, DATED 28 OCT. 2017, INSISTING THAT MORE INFORMATION BE MADE AVAILABLE

The complainant was not satisfied with the Ombudsman’s ‘provisional opinion’ on this complaint matter, i.e. on some particular issues he had raised re parts of the OIA responses by MSD. While he had achieved a partial success in getting the Ombudsman advise MSD to release some further information in response to request points 2, 4 and 7, other important information remained to be withheld, or was claimed to not even exist.

Hence the complainant prepared a formal response to the Ombudsman’s letter of 24 October 2017, presenting his remaining concerns and further comments, intended to convince the Ombudsman that MSD should not be allowed to continue withholding certain information.

In a letter dated 28 October the complainant accepted the apologies for the delays in the processing of his complaint, that had been provided by the Ombudsman, as he considered the at times very difficult circumstances their Office had been in. Upon summarising the previous correspondence, and the Ombudsman’s recent provisional opinion, the complainant did then address a number of issues or aspects that he considered as not having been resolved. He also wrote that he had up to that day not received any further information from MSD in response to his information requests, which would go beyond of what he received 26 Feb. 2015.

He wrote (page 2): “In my response to your provisional opinion I wish to make some further comments in relation to aspects of my complaint about MSD’s responses to my original information requests 1, 3, 6, 8 and 11, that is after having read your various considerations and formed opinion, and also in regards to your advice on Dr Bratt and his repeated misrepresentation of statistical and scientific reports, which includes his ‘record keeping’ on such matters.”

“I will deal with each of these complaint aspects and your corresponding provisional views request by request, or point by point. Firstly though, I wish to mention, that I have up to this day not received any further information from MSD in response to my information requests, which goes beyond of what the Ministry had initially made available on 26 Feb. 2015.”

The complainant raised the following points at issue under the corresponding headings:

‘Request 1 – your provisional opinion – my further comments’

As he had asked for “on site service provider addresses, and the particular services offered”, he considered that MSD had to provide that information.

He wrote: “given the fact that NO website links were provided with the original information response by MSD, it is unreasonable to expect me as a requester to go and search for any website information, in the absence of any references being made to such in the original information response.”

“When a requester is either unaware that such websites exist, or when a requester does not find the particular information he was looking for on a website he may find, then the Ministry cannot simply expect such a person to consider the information is publicly available. The very least one can expect in a case where the information is publicly available, is that the Ministry does then point this out, in its response, which did not happen in this case.”

The complainant wrote that individual WINZ offices would hold information on SPES and MHES providers’ on-site service delivery addresses, as they would regularly refer clients to them. Hence he commented: “Therefore I will not accept that the Ministry could reasonably refuse the information requested – according to section 18(g) of the OIA.”

He added the following further comments:
“Last not least, I note, that the Ministry did in its response of 26 Feb. 2015 not follow its obligation to inform me pursuant to section 19 OIA that the information was publicly available, as it now claims in reliance on the provisions in section 18(d) OIA. Nor did it do the same in respect of a refusal now argued as justified pursuant to section 18(g). No way how this may be attempted to be explained away, the Ministry was in breach of the OIA. I will provide some further comments re the above stated issues under ‘Request 6’, further below.”

‘Request 3 – your provisional opinion – my further comments’

The complainant quoted the Ombudsman’s comments from his provisional opinion, where he also wrote the following: “The Ministry has noted that this information is not collected in the manner you have requested and, referring to section 18(g)(i), it notes the Ministry is not required to create information.” He noted that the Ombudsman had made enquiries with the Ministry on this aspect of his complaint, and that he was apparently satisfied that section 18(g) in the OIA gave the Ministry ‘good reason’ to refuse the complainant’s request.

While noting the above comments by the Ombudsman, the complainant wrote that MSD had not given a clearer statement as to whether “wrap around services” in a more clinical form of health support were indeed simply provided as part of the ordinary, accessible public health care services presently available through District Health Boards. He had earlier asked for this, and he would still expect such a statement, he wrote. Also did he still expect some information (examples) of the types of such services that were being provided, he added.

While the complainant expected the mentioned information to be clarified, he did reluctantly accept that there was little point in taking the other remaining matter about contracted service providers’ staff qualifications any further, although he had his doubts about the explanations given by MSD in response to request 3, as communicated by the Ombudsman.

‘Request 6 – your provisional opinion – my further comments’

In response to the Ombudsman’s comments in relation to ‘Request 6’ and issues raised earlier by the complainant in respect of MSD’s response, the complainant wrote the following:
“Again, I will here also refer to my comments that I have already provided in relation to ‘Request 1 – your provisional opinion – my further comments’, see further above. I will refrain from repeating those particular considerations, which are the same in respect to this request.”

The complainant wrote also that there was no website to be found in May 2014 for one provider, ‘ECS Connections’ in Taranaki, and that other websites gave inconclusive “confusing” information as to where their on-site service delivery addresses were.

He wrote:
“I again ask you to consider, that MSD never provided any website addresses or links to such in the information provided in the first place, nor did it mention that the on-site addresses could be found on websites, hence it seems unreasonable, to later tell people, that the information is publicly available, even when in some cases it evidently is not so. It seems unreasonable to tell people who request such specified information to spend hours or days doing online searches, whether they have access to a functioning computer and internet, or not. If MSD is so certain that the information is publicly available, it should have pointed this out in the first place, and provided some information on how it may be accessed.”

He commented that in his view the individual WINZ Offices, or the Regional Offices, would have the on-site service delivery addresses of providers on record, as they would refer clients there. Hence the Ministry should still make the information available.

The complainant also wrote: “Last not least, I again note, the Ministry did in its response of 26 Feb. 2015 not inform me as per section 19 OIA, that the information would be publicly available, and that it had refused the information pursuant to section 18(d). In its response dated 24 April 2014 the Ministry only used section 18(g) to refuse information on providers’ staff roles and qualifications.”

‘Request 8 – your opinion, which appears to be ‘final’ – my further comments’

Although the Ombudsman had not invited further comments by the complainant on his opinion on ‘Request 8’ and MSD’s response to it, the complainant saw a need to express his remaining concerns on this OIA request point and the not accepted position by MSD.

He quoted his original full request, and that he wrote the following in his complaint letter of 9 March 2015:
“My request for the specified official information has in this case also not been fully met. I did not only ask 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.”

He again also referred to a radio interview on Radio NZ on 15 April 2014, where MSD’s Director for Welfare Reform, Sandra Kirikiri, answered questions by Kathryn Ryan.

The complainant quoted what MSD wrote in their response of 26 Feb. 2015, and what Ombudsman Donnelly wrote in his provisional opinion. He then presented his response to this and his further comments on this aspect of his complaint:
“While I acknowledge your position on this aspect, I am concerned that the Ministry continues to insufficiently address the contradictions I observed. I also note that since that interview, Ms Kirikiri and other senior staff of MSD have not accepted invitations to media interviews to offer further comments on the MHES trials and similar programs, as has repeatedly been confirmed in programs by Kathryn Ryan, John Campbell and others at Radio New Zealand.”

“While this may be a matter where I have interpreted comments by Ms Kirikiri in a way, that may not quite correspond with the actual approaches and policies followed by MSD and WINZ, it would have assisted me and the public, if MSD had provided more clarity and answered to questions put to them, not only by me, but by others, including the media. Hence I remain unconvinced and disappointed by the response provided by MSD and that you consider that you cannot take this matter any further.”

‘Request 11 – your provisional opinion – my further comments’

In respect of ‘Request 11’, his stated issues and the Ombudsman’s provisional opinion, the complainant did firstly again quote the original OIA request. He also quoted from his complaint relating to MSD’s response on this aspect, dated 9 March 2015. He furthermore quoted MSD’s further comments and what Mr Donnelly wrote in his ‘provisional opinion’.

The complainant then presented his further comments on this complaint aspect and on Mr Donnelly’s provisional opinion.

He wrote the following:
“From your response with your provisional opinion, I understand that the Ministry has chosen to now be very ‘particular’ with interpreting my original request. Hence it has now chosen to refuse information by using section 18(f) of the OIA, after having taken a slightly different approach in their original information response of 26 Feb. 2015. In short, the responses provided by MSD are in my view nothing but an attempt of obfuscation.”

He added: “The Work and Income website is a site with endless pages and substantial information, but while some information is generously provided, other information is hard to find, or cannot be found at all. I have repeatedly visited the WINZ website and made searches for the particular information I asked MSD about, and I made the OIA request, for the very reason that I COULD NOT find on the website, what I asked for.”

The complainant expressed his concern about the Ombudsman’s acceptance of MSD’s responses and the further comments it provided to his Office. He wrote that he had earlier received a copy of the ‘Guide for Designated Doctors’ upon an OIA request on 24 March 2011. Commenting on ‘advice’ the Ministry provides to medical practitioners, he wrote: “The ‘Guide for Designated Doctors’ is one such main document, that used to exist, and which was provided to medical practitioners working as Designated Doctors for the Ministry, to offer guidance on how to complete ‘Work Capacity Medical Certificates’ and how to examine and assess clients for WINZ purposes.”

He wrote that it could not be found on the Work and Income website, same as other information, and that no information had been provided on where it could be found. He also wrote that he would not accept the following comments by MSD:
“I do also not accept the Ministry’s new response to you, stating: “Mr Xxxxxx requested ‘information’ on the advice, not the advice itself, and has been provided with this.””

The complainant and information requester wrote that he did not accept that MSD could use section 18(f) OIA to refuse the information he had sought.

He added the following to his concerns:
“As for the ‘centralised repository’, I suggest you consider that such information may be kept in the office of Dr David Bratt, Principal Health Advisor to the Ministry, as he is responsible for this particular area of work. His Office is not one scattered all over the various WINZ Offices, any advice, guidelines and expectations get communicated from his Office to others within MSD and WINZ. Section 18(f) OIA is therefore not accepted as a reasonable, acceptable reason for refusal, which was again not even mentioned in the original OIA response of 26 Feb. 2015, as I note. So again, the Ministry was in breach of section 19 OIA.”

Your comments on ‘Record keeping by Dr Bratt’ – my further comments

The complainant wrote, besides of other comments he made:
“While I acknowledge your formed opinion with some disappointment, I must inform you that Dr Bratt’s professional body, being the Medical Council of New Zealand (MCNZ), does not have any responsibility for Dr Bratt’s work as Principal Health Advisor for MSD. Dr Bratt was appointed under the provisions of the State Sector Act 1988, and is therefore working in a specialist advisory role in the public service, not as a practicing doctor, providing health care.”

“Former Chief Executive Mr Peter Hughes, when responding to an OIA request I made on 29 Dec. 2010, clarified the following in his response letter dated 24 March 20112. On page 3 he wrote in response to my request 12:
“The Chief Executive has the authority under the State Sector Act 1988 to delegate functions to appropriate staff and has the duty to act independently in relation to staff matters. The roles of Ministry staff members listed in question 12 are therefore not specified in the Social Security Act 1964.””

“It is indeed the ‘State Sector Act 1988’, and in it section 41 that covers the delegation of functions and powers by a Chief Executive to employees. Hence Dr David Bratt appears to have been appointed under that legislation, as a specially appointed Principal Health Advisor (PHA) to work for MSD and WINZ in the public service.”

He then explained the following – in some detail:
“Therefore, the MCNZ is – under the HPCA – only responsible for activities of registered members in the area of providing ‘practice of medicine’, i.e. medical treatment, not for activities such as being a consultant for other agencies, like for instance MSD, WINZ or ACC – in the public service, or alternatively in the private sector.”

“It would therefore be a waste of time for me to try and consult the MCNZ on Dr Bratt’s activities as a Principal Health Advisor for MSD, as he does in that role not ‘practice medicine’. From a legal point of view, his role is that of an Advisor, albeit on health matters, but he cannot be held accountable under the HPCA for anything he may say or do in a purely advisory role, where he is not involved in providing treatment to patients.”

And by referring to emails he sent 21 May 2016, and which he later resent, he explained again, how a report found on the New Zealand Medical Journal, by Gordon Purdie, Senior Research Fellow at the University of Otago in Wellington, dated 20 Nov. 2015, showed how MSD’s Principal Health Advisor relied on incorrect statistical information while trying to influence medical professionals who made decisions on WINZ clients with health issues.

He also wrote that he disagreed with Prof. Paterson’s decision that he lacked interest in Dr Bratt’s conduct as PHA (Principal Health Advisor) for MSD. He wrote the following: “At any time I may be expected to undergo a medical examination under the Social Security Act 1964, which could be conducted by a Designated Doctor or a GP or other professional, who may have accepted misrepresented ‘evidence’ by Dr Bratt, and who could then make a decision based on flawed, inappropriately interpreted, unreliable ‘evidence’.”

So under his ‘Closing comments’ the complainant asked the Ombudsman to reconsider his provisional opinion, or at least in part, after considering his further comments and evidence.

Attached to an email carrying his response letter, he sent 3 PDFs with relevant correspondence and information to consider.

A PDF file with the authentic text of the reply letter by the complainant, partly redacted and dated 28 Oct. 2017, is found via this link:
Ombudsman, complaint, 39xxx4, MSD, OIA inform. refusal, prov. opinion, reply, anon, 28.10.2017

 

PART 12 – THE OMBUDSMAN’S FINAL OPINION, DATED 14 NOV. 2017, IGNORING MOST OF THE APPEALS BY THE COMPLAINANT

At 10.44h on 14 Nov. 2017 the complainant got another email from an unnamed sender at the Office of Ombudsmen, attached was the ‘final opinion’ of Ombudsman Leo Donnelly, which was again somewhat disappointing. It was a brief letter, only about one and a half pages long, and it appeared to the complainant, that the Ombudsman had already decided to maintain his ‘provisional opinion’ and simply turn it into his final one, no matter what new comments and information the complainant would present in reply to the ‘provisional’ one.

He listed each point separately that he considered worthy responding to, and commented the following:

“Request One – on-site service provider addresses.”

“You note that no website links were provided by the Ministry and that you do not accept section 18(d) and 18(g) are applicable.

I note that the Ministry did provide you with the providers’ addresses and that you have in fact accessed the on-site delivery address information on-line.

I confirm my final opinion is that the Ministry’s refusal is justified. I will, however, note your point to the Ministry that you were not referred to the existence of websites, nor provided with links (and that this would have been a more helpful response). “

“Request 3 – ‘wrap-around services’”

“You note you would have expected a ‘clearer statement’ from the Ministry in response to this request.

An agency is not required to create information to respond to an OIA request and my role under the OIA is to ensure that, where information is held, it is released upon request unless there is good reason under the OIA to withhold it.

Your comments that the Ministry has not ‘sufficiently clarified’ the position to your satisfaction are not concerns that I can take further under the OIA.”

“Request 6- on-site services delivery addresses.”

“You have noted that some of the providers do not have websites or have websites that are not helpful, although it appears that your last checks may have been some time ago. In respect of the websites, I will, again, note to the Ministry that it would have been more helpful for the Ministry to refer you to the existence of websites (and provided links, where possible).

I do not propose to take this issue further. If there is a specific provider, whose on-site delivery address you have been unable to access through your online-searches, then I suggest you make a specific request for this information, noting that you have been unable to access it on-line.”

“Request 11- Advice or expectations the Ministry had provided to health professionals”

“I note the ‘Guide for Designated Doctors’ was being considered as one aspect of your complaint in case No. 44xxx8 and I understand the Ministry has now released that document to you.”

“Record keeping by Dr Bratt”

“Your comments are noted. I am still of the view that your personal interest in Dr Bratt’s record-keeping is insufficient.”

Final opinion.”

“I now confirm as final the opinions expressed in my letter of 24 October 2017. I have concluded my investigation and review. I will close the file once I have had confirmation from the Ministry that they have released the information discussed in respect of requests 2, 4 and 7.”

Author’s own comments

So much for a ‘final opinion’ by the Ombudsman Leo Donnelly. In summary, one can see that Mr Donnelly took a rather conservative approach when ‘investigating’ this complaint. He appeared to give MSD the benefit of the doubt, when it came to their limited information releases, their further comments and explanations in response to the ‘notified complaint’. He made totally clear, that he was very unwilling, to conduct any further communications in this complaint matter. All he was waiting for was for MSD to release to the complainant and information requester that extra bit of information in response to OIA requests 2, 4 and 7.

Mr Donnelly did not even mention the fact that MSD had from the start with their first formal information release of 26 Feb. 2015 failed to mention any good reasons why certain information was not provided, or was only provided in part. No reasons had been given for this, when it came to some requests, despite of the clear requirement under section 19 OIA. For instance the existence of address information on websites was never even mentioned in the Ministry’s first response, yet in absence of any references to the existence of websites of providers, MSD later claimed they had ‘good reason’ to refuse the information under section 18(d), as it was ‘publicly available’. That was done in retrospect though, and the Ombudsman did not even bother raising this with MSD, apart from finally noting it would be ‘more helpful’, where possible, to offer references to the existence of websites or their links. In other cases former refusal reasons were suddenly changed, in response to the ‘notified complaint’.

Various bits of other requested information remained to be withheld, as the Ombudsman rather believed and relied on the explanations and responses provided to him by MSD. For instance in that earlier mentioned Radio NZ interview in April 2014 the Ministry’s Manager for Welfare Reform firmly stated there were targets in the context of referring clients with health conditions and so to providers, and to them being placed into employment, but MSD later contradicted this. Contradictions remained, and the Ombudsman simply believed MSD.

NO serious enough consideration appears to have been given to the repeatedly mentioned issues with Dr Bratt and the ‘advice’ and ‘expectations’ he had as MSD’s ‘Principal Health Advisor’ (PHA) communicated to medical and health professionals for a fair few years. MSD was allowed to water down that aspect of the complaint, by claiming the information was not held in a ‘centralised repository’. But they would not need to look any further than Dr Bratt’s Office, to find such a ‘repository’ full with ‘advice’ he repeatedly shared in presentations. One only needs to look at Dr Bratt’s at times bizarre, clearly misleading ‘presentations’, to detect a clear bias. The fact that MSD have supported him as PHA since 2007, and kept him in his senior role, that speaks volumes about how much – or rather little – MSD is committed to true accountability, transparency and adherence to science and backed up evidence.

So once again Ombudsman Leo Donnelly decided against launching an investigation into Dr Bratt’s past conduct as PHA for MSD and WINZ (e.g. his deletion of all email records of his consultations with an external UK based ‘expert’), despite of compelling evidence of Dr Bratt acting unprofessionally and unethically. Mr Donnelly rather relied on former Ombudsman Ron Paterson’s view that the complainant had insufficient personal interest in Dr Bratt’s record-keeping. This was despite of him having the ability under section 13(3) Ombudsmen Act 1975 to make an investigation either on a complaint by a person, or of his own motion.

What does this tell us about our Ombudsman, in this case? ‘Fairness for All’ is the Office’s slogan, it does sound nice, but the reality some complainants face puts this into question.

A PDF file with the authentic scan copy of the Ombudsman’s final opinion on the matter, partly redacted and dated 14 Nov. 2017, is found via this link:
Ombudsman, complaint, 39xxx4, MSD, OIA rqst, MHES, etc., fin. opinion, 14.11.2017
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, MHES, etc., refusal, final opinion, hi-lit, 14.11.2017

 

PART 13 – THE COMPLAINANT’S REMAINING CONCERNS AND THE OMBUDSMAN INVESTIGATOR’S EMAIL OF 16 NOV. 2017, CONFIRMING THE FILE WILL BE CLOSED

Rather concerned about the Ombudsman’s position, in not taking up his remaining concerns with MSD, the complainant did on 16 Nov. 2017 write once again to the Office of Ombudsmen.

The complainant’s final email and letter dated 16 Nov. 2017

At just after midday on 16 Nov. 2017 he sent another email with a letter of that same date to Ombudsman Donnelly and Investigator Bxxxxx Xxxxxx. After thanking the Ombudsman for his final opinion, he wrote with regret that the complaint matter was still not fully resolved. Some matters appeared to have been overlooked, he wrote, and the further information that the Ministry was supposed to send him, this had not been received. He referred to the Ombudsman’s provisional opinion of 24 October 2017, where he had written that MSD had agreed to send further information in response to OIA requests 2, 4 and 7.

He then presented an overlooked aspect of his remaining concerns, and he clarified that he had expected of the Ombudsman, that he would have advised MSD that they should have a responsibility to point out that certain information was publicly available. He quoted from his responses to the Ombudsman’s provisional opinion, in relation to information ‘Request 1’ and ‘Request 6’. He made a reference to the OIA section 19A, which requires that a reason for a refusal of information must be given. He considered this to be an obligation. Mentioning the other, different refusal grounds stated and used by MSD, the complainant expressed his view that: MSD had a responsibility to point out, that the information was publicly available, in their response to me, dated 26 February 2015. He added that MSD: must be advised that they must in future do so, as that is what the law requires them to do in such circumstances”. While the Ombudsman had considered it may be ‘helpful’ for the Ministry to refer to websites that existed for providers, the complainant was of the view, such advice was not sufficient.

The complainant also wrote that MSD had up to that day (16 Nov. 2017) still not provided the remaining information that the Ombudsman had mentioned they would release in response to his earlier OIA requests 2, 4 and 7. The only additional information which he had so far received was an out of date Guide for Designated Doctors manual from 2008, sent to him by a person called ‘Mxxx’ on 8 Nov. 2017.

The complainant hoped that this information would not be forgotten, and that MSD would provide it to him soon. He closed off his letter with the following comments: “While I remain disappointed about your continued refusal to look deeper into the conduct of Dr David Bratt, I do hope, that this file will not be closed until the above has been resolved.”

The Senior Investigator’s email response to the complainant, of that same day

At 15.25h on 16 November 2017, Senior Investigator Bxxxxx Xxxxxx wrote back to the complainant, merely commenting the following:

“Your letter has been received and noted and placed on the file. The Ombudsman has completed his investigation of this complaint on the basis discussed in his letter of 14 November. The file will be closed once the Ministry advise this Office they have released the information discussed in respect of Requests 2, 4 and 7.”

So much for a reply, this was short and blunt, and signalled to the complainant, that his remaining concerns were of little interest or concern to the Senior Investigator and Ombudsman Donnelly. This apparent bit of disregard for complainants, who may go the extra mile in trying to get an appropriate and acceptable resolution to complaint matters, was though nothing new to the complainant. He had experienced a similar treatment before, when receiving some other ‘final opinions’ on complaints, especially from former Ombudsman Beverley Wakem, who even refused to review the conduct of a staff member, who had apparently misinterpreted or even misrepresented facts. Certain holders of high Offices seem to have a dim view of ordinary persons making repeated complaints, and insisting on attention to detail, on correctness and fairness in complaint processing and resolution. Once again, ‘Fairness for All’, the slogan used by the Ombudsmen, rang hollow.

A PDF file with the authentic response letter by the complainant, to the ‘final opinion’ of Ombudsman Donnelly, dated 16 Nov. 2017, can be found via this link:
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, MHES, etc., refusal, complainant ltr, anon, 16.11.2017

A PDF file containing the authentic scan copies of the Investigator’s final email response, and the complainant’s earlier email, partly redacted, both of 16 Nov. 2017, can be found via these links:
Ombudsman, complaint, 39xxx4, MSD, OIA rqst, MHES, etc., refusal, email reply, anon, 16.11.17
Ombudsman, complaint, 39xxx4, MSD, OIA rqsts, inform. refusal, investigtr email, hi-lit, 16.11.17
A PDF containing the received Guide for Designated Doctors, which MSD sent the complainant on 8 Nov. 2017, can be found via this link:
WDB6 Guide for designated doctors_FINAL

 

PART 14 – MSD’S FURTHER INFORMATION RELEASE OF 22 NOV. 2017, SHOWING HOW MHES TRIALS WERE A FAILURE

After nearly another week the complainant would finally get the further information that MSD had agreed to release to him, upon the intervention of Ombudsman Donnelly, in ‘resolving’ complaint 39xxx4. With a letter dated 22 Nov. 2017 MSD provided the additional information in response to Requests 2, 4 and 7, which was about three years after the information should have reasonably been expected and received by the complainant.

The following information was the ‘further’ response now provided to him:

“Dear Mr Xxxxxx

I write further to your Official Information Act request of 1 October 2014, requesting information from the Ministry of Social Development (The Ministry) about services to beneficiaries.

After consultation with the Office of the Ombudsman, the Ministry is now providing further information in response to your request.”

“You asked for information about ‘outcome expectations’.
Below are the outcome expectations:

The Mental Health Employment Service (MHES)
As a result of their participation in the Service:
● 50% of clients will be expected to have been placed into employment that aligns with their work obligations; of whom
● 80% will be expected to have remained in employment, aligning with their initial work obligations, for a period of twelve (12) months.

The Sole Parent Employment Service (SPES)
As a result of their participation in the Service:
● 52% of clients will be expected to have been placed into employment that aligns with their work obligations; of whom
● 80 % will be expected to have remained in employment, aligning with their initial work obligations, for a period of twelve (12) months.”

“You requested numbers about how many beneficiaries referred to MHES and SPES ‘have been successfully referred to employment’.

The data below is provided based on the reporting information from the MHES and SPES Providers. This has not been checked against Work and Income systems. The data reflects the actual ‘enrolments’ in service and ‘actual outcomes’ as reported by providers through the reporting tool known as Service Outcome Reporting Tool. The data is provided for the period August 2013-June 2015 and has been manually collated from provider reporting. The outcomes recorded are for those placed into employment only and not for those achieving the 6 or 12 month outcome within the period.”
……………….

Note by author:
For the actual data in the provided tables, please load the authentic scan copy of the response by ‘the Ministry’ (MSD) dated 22 Nov. 2017, which can be found via this link:
MSD, OIA rqst, MHES, WAA, other services, 01.10.14, further info release, anon, 22.11.2017

Continuation of ‘further response’:

“You also requested:
‘what: plans exist to change or increase particular expectations and/ or criteria for sick, injured and disabled persons to be referred to work ability assessments’.

The Ministry did not have any plans to change the Workability assessments or the expectations at the time.”

“I trust this information is helpful.

Kind regards

Mxxx

Ombudsman and Privacy Complaint Services
Ministry of Social Development ……..”

Author’s own comments:

So here we have it, besides of the also useful information about ‘outcome expectations’ that MSD had for those MHES and SPES trials, being delivered by contracted Providers, we now have the first real figures for enrolments and employment outcomes for them. Although the information does not specify for how long such employment placements of participating Work and Income clients may have lasted, it is at least an indicator of how many were at least put into any form of presumably ‘suitable’ employment.

Often less than half of the numbers of persons newly enrolled for the MHES were eventually placed into a form of employment, as the tables show. Sometimes the figures were worse, at times a little better. Overall, job placements did not match enrolments, far from it. There appears to have been no significant improvement over time. We do not know though, how much was paid in fees to the providers, and whether the whole exercise was economical for them. If targets may not have been met, some fees will not have been paid.

It is no wonder then, that MSD and the then government ditched these trials and since then started new ones, such as Work to Wellness, which may fare little better in the end.

The figures are clearly not that encouraging, they are disappointing for MHES, and a bit less disappointing for SPES. This data had been withheld by MSD for years, and in the meantime there has also been another report released, which admits that the MHES trials did not deliver what they were initially expected to deliver.

Here is a link to a PDF containing MSD’s report Effectiveness Of Contracted Case Management Services On Off Benefit Outcomes: Mid-Trial Report, of mid or late 2015:
MSD, OIA Release, Mid Trial Evaluation Report on MHES and SPES Trials, mid 2015

On page 7 in that document (page ‘3’ it says on the page itself) it does for instance reveal the following:
“Duration in contracted services

One important reason for the absence of an impact from MHES is the relatively short time the treatment group spend on the service. We found a high dropout rate for the treatment group. For MHES, 48% of referred clients ended the services within 8 weeks after starting. For the SPES the proportion was 35% (refer Figure 5).”

But that report also concedes that there may well be some flaws with the ‘evaluation’, as can be seen by reading the text under ‘2.6 Participants excluded from this analysis’, on PDF page 12. The ‘Appendix’ on the last page only gives some information on referrals and participation in the trials, but no information on job placements.

Again, for the authentic scan copy of the full further information response by MSD to the requester’s OIA request of 1 October 2014, dated 22 Nov. 2017, please click this hyperlink to load a PDF that contains it:
MSD, OIA rqst, MHES, WAA, other services, 01.10.14, further info release, anon, 22.11.2017
MSD, OIA rqst, MHES, SPES, WAA, other services, 01.10.14, further rel., hi-lit, anon, 22.11.17

So it took MSD three years to provide some crucial and important data, which the requester had initially asked for, and only with the assistance of the Ombudsman was some of it finally released under the OIA. By now, the information is somewhat irrelevant, as MSD and the government have moved on, and quietly abandoned MHES.

 

PART 15 – CONCLUSION: THE OMBUDSMAN LARGELY LETS OFF MSD ON MATTERS OF SERIOUS CONCERN, AND TAKES NO FURTHER ACTION DESPITE OF SIGNIFICANT OIA BREACHES

From the above quoted correspondence and the way this complaint has been treated and handled by the Office of Ombudsmen, it is blatantly obvious, that Ombudsman Donnelly, or shall we rather say his Senior Investigator, ‘investigated’ the complaint in a rather superficial, apparently rushed manner. This happened in mid to late 2017, after a two year delay in progressing with the complaint, which was left on a pile of ‘aged complaint files’ as probably being too difficult or complex to bother with. That of course was also due to the years of under-funding of the Office of Ombudsmen, which even former Chief Ombudsman Beverley Wakem lamented about in the Office’s Annual Reports and some media reports.

We may also refer you to two other useful, interesting and revealing posts in that regard, found via these hyper-links:
https://nzsocialjusticeblog2013.wordpress.com/2016/09/05/the-new-zealand-ombudsman-underfunded-and-compromised-the-auditor-general-sees-no-need-for-action/
https://nzsocialjusticeblog2013.wordpress.com/2016/07/24/the-new-zealand-ombudsman-fairness-for-all-an-empty-slogan-for-some/

Complaints Outcome by Request

We need to look at the partly unsatisfactory outcome of this complaint by again looking at each ‘Request’ made under the OIA on 1 Oct. 2014. It is obvious that MSD did in its original formal and ‘final’ response of 26 Feb. 2015 fail to give refusal grounds for some information that was never presented to the requester, and re some ‘Requests’ the initial refusal grounds were somewhat different to what the Ombudsman would finally accept as ‘good reasons’ and ‘reasonable’ in his ‘provisional’ and ‘final opinion’.

It is also disturbing that the Ombudsman saw no need to remind MSD of the requirements it had under section 19 OIA, to give reasons for refusing information, and that he thus let the Ministry off the hook, so to say, somewhat lightly.

One would have expected the Ombudsman to be firmer on MSD, in holding the Ministry to account for failing to provide the actually available information on Requests 2, 4 and 7, and for not presenting any information such as the ‘Guide for Designated Doctors’. But under section 22 of the Ombudsmen Act 1975 the Ombudsman has only limited powers to prepare and release reports upon investigations, to make recommendations and give advice. No agency is bound to follow such recommendations or advice, although refusing to do so may lead to some loss of reputation in the wider public, and it may result in the Ombudsman sending a further report to a Minister and/or the Prime Minister.

In any case, here we have a brief look again, at how the Ombudsman dealt with the complaint issues or aspects on a point by point, or request by request basis:

Request 1
In their response of 26 Feb. 2015 MSD only provided ‘head office’ addresses for SPES providers and for the same for MHES referred to its earlier OIA response of 24 April 2014. No reason was given for refusing the on site provider addresses and also was little information provided on the particular services offered. NO reference was made to the existence of websites with such information. Upon ‘investigating’ the complaint, dated 9 March 2015, the Ombudsman did in his provisional opinion of 24 Oct. 2017 simply accept MSD’s new position that the Ministry “may not itself have been provided ‘with all sites’ addresses”. He only then formed his view that the information asked for “can be refused under section 18(d) on the basis that it is publicly available, and section 18(g) where the Ministry does not actually hold the information.” He made no mention that under section 19 OIA there was a requirement by MSD to give the requester a reason for not providing certain information, which it had not done with its former response.

In his response of 28 Oct. 2017 the complainant reminded Ombudsman Donnelly, that he had clearly also asked for “on site service provider addresses and the particular services offered”. He wrote that he had only been provided hard copies with tables containing the head office address information, and hence it was ‘unreasonable’ for him to be expected to go and search for website information, in the absence of references made to them. MSD had not pointed out the information was publicly available, he wrote. He rejected refusal ground 18(g) OIA, as WINZ would know the on site addresses due to referring clients there, and he commented that no refusal ground had been given, as required under section 19 OIA. All the Ombudsman commented in his final opinion of 14 Nov. 2017 was that the complainant had been able to access the online information after having been provided the (head office) addresses. Astonishingly the Ombudsman maintained his view that MSD’s refusal was ‘justified’. At least he noted the complainant’s point that he had not been referred to the existence of websites, nor provided with links, which may have been ‘more helpful’.

Request 2
In MSD’s response of 26 Feb. 2015 the requester received the ‘fee structure’ information for SPES providers, and referred to its earlier response of 24 April 2014 for the same information for MHES providers. No information was given on ‘outcome expectations’ that MSD had from the providers of both services. Hence in his letter of 9 March 2015 the complainant had asked that ‘outcome’ or ‘target’ information be presented by MSD. The Ombudsman wrote in his provisional opinion that “the Ministry has located relevant information about ‘outcome expectations’ and provided it to this Office.” He wrote that he had asked MSD to make that information available, which appears to be an acceptable outcome. It was later provided in acceptable form by way of a letter from MSD dated 22 Nov. 2017 (see PART 14 for details).

Request 3
In its initial response of 26 Feb. 2015 MSD provided a brief description of the MHES and how it “provides employment-related case management, placement and post placement support to assist participants to gain and maintain employment”. MSD would not centrally hold information on clinical services accessed through the service providers, they wrote. Hence that request was refused pursuant to section 18(g) of the OIA, same as information on providers’ staff roles and qualifications. The complainant presumed in his letter of 9 March 2015 that ‘wrap around services’ in the form of ‘mental health support’ would be provided through providers and that this was covered by the contract with MSD. He asked whether that information was being withheld, or does not exist, or was also not “centrally held”. He also believed that service providers’ staff would need to have minimum qualifications, which he expected to be mentioned. Also did he seek a ‘clear statement’ on whether ‘wrap around services’ “in a more clinical form of health support” would be provided through public health services at District Health Boards.

According to his provisional opinion of 24 Oct. 2017 the Ombudsman had made further enquiries re this, and formed his view that section 18(g) gave the Ministry good reason to refuse the request (particularly section 18(g)(i)). In his response to that, dated 28 Oct. 2017, the complainant argued that he had still not received a clarified statement from MSD on whether ““wrap-around services” in a more clinical form of health support” were simply “provided as part of the ordinary, accessible public health care services presently available through District Health Boards”. In his final opinion of 14 Nov. 2017 Mr Donnelly would stick to his already formed view, that “an agency was not required to create information”, and that he could not take further the complainant’s concerns under the OIA. Although the complainant attempted to raise some remaining concerns about a number of aspects of his complaint with a letter and email of 16 Nov. 2017, the Investigator refused to engage in any further correspondence on the matters thus presented.

Request 4
In its response of 26 Feb. 2015 MSD presented two tables with information on MHES and SPES referral and participation numbers from Sept. 2013 to Oct. 2014, and how many ‘exited’ the services “As at the end of October 2014” for various stated reasons. The information thus presented did not appear clear and broken down enough; hence the complainant raised this in his complaint of 9 March 2015. He also noted that “NO information has been provided on those participants of either service, who have been successfully placed into employment”.

The Ombudsman did in his provisional opinion comment: “In response to my notification of your complaint about the form of the information provided, the Ministry has noted that, while your preference may not have been addressed, the information was in fact provided”. He accepted the Ministry’s response was “reasonable”. He added though that the Ministry had provided him some “manually collated data” about numbers successfully placed in employment, and that the Ministry was now happy to release it to the requester. Hence this part of the investigation was partly successful for the requester, as MSD would by way of a letter sent by email on 22 Nov. 2017 present some information on ‘Enrolments’ and ‘employment Outcomes’ for both MHES and SPES, which providers had sent them. The information showed how comparatively poorly the MHES trials performed, and it was not giving any information on the duration of ‘employment’ that participants had been referred to. See PART 14 for that ‘further information’ release and details in it.

Request 5
In its initial response of 26 Feb. 2015 MSD provided information, which appeared to contradict earlier presented information in their response of 24 April 2014. It wrote: “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).” The complainant and information requester raised this with the Ombudsman in his complaint of 9 March 2015, asking why clear enough relevant information could be provided by MSD on 24 April 2014, and why the same kind of information was no longer available. He asked for a proper explanation and clarifications. But the Ombudsman did not even address this question, as this request point was ruled out by the Senior Investigator by way of her letter dated 16 May 2017, commenting that this complaint issue did not constitute an OIA request.

Request 6
All that MSD provided in its initial response of 26 Feb. 2015 was the following explanation: “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.” In his complaint of 9 March 2015 the complainant pointed out that MSD had again only provided head office addresses for ‘Work Ability Assessment’ (WAA) providers with their response dated 24 April 2014, not the on-site service delivery addresses.

The Ombudsman commented in his provisional opinion of 24 October 2017: “In response to notification of this aspect of your complaint, the Ministry have referred to their response to request 1, that is, that the physical address is available from the web site of the providers.” He then wrote: “I accept that section 18(d) provides good reason under the OIA to refuse this part of your request on the basis that the information is publicly available.”

In a response to the Ombudsman’s provisional opinion the complainant wrote on 28 Oct. 2017, partly also referring to his comments regarding ‘Request 1’, that he actually had some trouble finding a website, and also finding relevant, useful, conclusive information on existing websites on providers’ addresses. He wrote that there were no links or website addresses mentioned in the original response by MSD. He pointed out again, that the Ministry gave no reason as required under section 19 OIA, e.g. that the information was deemed to be publicly available. The Ombudsman did in his ‘final opinion’ point out that it was some time ago, that the complainant checked the websites he mentioned. He refused to take the matter further. So once again, Mr Donnelly seemed to consider section 19(a)(i) of the OIA was irrelevant, and that MSD did not have a responsibility to provide that reason in their first response.

Request 7
In their initial response of 26 Feb. 2015 the Ministry provided only the following explanation: “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.” A link was provided for information on the Work and Income website, which contained little or no relevant information in reply to the actual request for information on expectations Work and Income were currently placing on sick and disabled on health related benefits, ‘in regards to meeting obligations to attend external examinations/assessments for medical conditions and work capability’. And no information was provided on sanctions, should a client object or refuse to participate in such an examination/assessment. In his complaint of 9 March 2015 the complainant pointed this out, and referred to the Ministry’s response of 24 April 2014, where it had not clearly enough stated what ‘sanctions’ may be imposed. He also wrote that his request had not been answered, when he asked for “information on any plans that may presently exist to change or increase particular expectations and/or criteria for sick, disabled and injured persons” on particular health related benefits, to be referred to work ability assessments.

The Ombudsman did in his provisional opinion of 24 Oct. 2017 write: “In response to my notification of this aspect of your complaint, the Ministry has apologised and acknowledged that they did fail to respond to this particular aspect of your request.” He wrote: “The Ministry has undertaken to now respond to you about this request.” All that MSD would later on 22 Nov. 2017 inform the complainant of was, that “The Ministry did not have any plans to change the Workability assessments or the expectations at the time” (of the OIA request). See PART 14 for their ‘further information’ response. That though still left some concerns of the complainant and information requester completely unanswered, e.g. the one about ‘sanctions’, and how they would be applied.

Request 8
Being asked about ‘specific performance targets’ for Work and Income staff, managers and Advisors, MSD stated on 26 Feb. 2015 that they paid no bonuses, offered no extra leave in recognition of performance, and that in past years some staff received a ‘productivity dividend‘ for meeting group measures in achieving efficiencies and reducing work duplication. A table for ‘Performance Payments’ and ‘Productivity Dividend’ payments was presented. They wrote that there were no performance measures for staff to refer beneficiaries to contracted services, and hence MSD withheld or refused the information under section 18(e) OIA. It was said that Work and Income monitored its business indicators and numbers of people on benefits, and there was no information provided on targets. So in his Ombudsman complaint of 9 March 2015 the complainant asked for the actual information on specific performance targets, as he had not received this. He referred to a RNZ interview on 15 April 2014 and provided a hyperlink. He quoted how a ‘Director for Welfare Reform’ had in that interview clearly said: ”They definitely have targets”, when talking about MHES service delivery and how WINZ worked with clients with mental and other health conditions. The complainant asked for a ‘clarification’ and ‘the requested information’.

In his provisional opinion Ombudsman Donnelly commented on 24 Oct. 2017: “In response to notification of this aspect of your complaint, the Ministry notes that it has provided you with the information you requested.” He appeared to reject the complainant’s impression that there was a potential contradiction between information provided by the Ministry and what was said in that radio program. He asserted the comments by the complainant about the radio program reflected his ‘interpretation’ and ‘extrapolation’. It was not part of his investigation and role so that a ‘better response’ was provided, he commented. He considered he could not take the matter further. So in his response to this, dated 28 Oct. 2017, the complainant wrote: “While I acknowledge your position on this aspect, I am concerned that the Ministry continues to insufficiently address the contradictions I observed.” He remained unconvinced and disappointed about the response by MSD, and that the Ombudsman could not take the matter further, so the complainant wrote. The Ombudsman simply refrained from offering any further comments on this in his short ‘final opinion’ of 14 Nov. 2017.

Request 9’ and ‘Request 10
The complainant considered MSD’s responses to requests 9 and 10 as generally satisfactory. Hence he did not raise any concerns or issues re these in his complaint to the Ombudsman.

Request 11
All that MSD had on 26 Feb. 2015 initially provided as information to this request were the following comments: “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 .” In his complaint of 9 March 2015 the complainant pointed out that the WINZ website did not contain the specific information he had requested, and that “direct Advisor to practitioner “advice” and “expectations” communicated to such health practitioners” was not to be found there. He wrote that he had asked whether “particular sets of questions” or “particular criteria” had been communicated to GPs. That request had not been met, and also had a source for the ‘Guide for Designated Doctors’ not been provided, he commented.

In his provisional opinion Mr Donnelly wrote: “In response to my notification of this aspect of your complaint, the Ministry noted that ‘[t]he Ministry considers that further advice should have been refused under section 18(f) of the Act as there will not be a centralised repository of ‘advice to doctors’. Mr Xxxxxx requested ‘information’ on the advice, not the advice itself, and has been provided with this.” Ombudsman Donnelly simply accepted MSD’s explanations and reason, and thought it had “good reasons to refuse the communications” under section 18(f). Strangely that reason was never provided by MSD with the initial response, and again, the Ombudsman saw no reason to remind MSD that it had to state a reason for a refusal, under section 19 OIA. The complainant and information requester did in his response of 28 Oct. 2017 express his view, that MSD’s responses were nothing but an attempt of ‘obfuscation’. He was concerned about the Ombudsman’s acceptance of MSD’s responses. He expressed his dissatisfaction about the lack of information about a ‘Guide for Designated Doctors’. He asked the Ombudsman to consider that a ‘centralised repository’ would be Dr Bratt’s Office.

The only further information Mr Donnelly would provide in his ‘final opinion’ was then: “I note the ‘Guide for Designated Doctors’ was being considered as one aspect of your complaint in 44xxx8 and I understand the Ministry has now released that document to you.” For the rest he appeared to uphold his ‘provisional opinion’. Again, MSD were allowed to use a refusal ground stated far too late, after having flouted the requirement under section 19 OIA.

Request 12’, ‘Request 13’ and ‘Request 14
The complainant was generally also mostly satisfied with the adequate responses he received from MSD to his information requests 12, 13 and 14, so there was insufficient reason to include any concerns re these in his complaint of 9 March 2015.

Additional issue with ‘Record keeping by Dr Bratt’
Having repeatedly raised concerns about Principal Health Advisor Dr Bratt’s deletion of ‘all’ emails for a certain period, containing correspondence with external Advisor Prof. Mansel Aylward from the UK, and also about Dr Bratt’s professional integrity and competency, the complainant and information requester received another unsatisfactory decision or ‘opinion’ from Ombudsman Leo Donnelly (see his ‘provisional opinion’ letter of 24 Oct. 2017).

Mr Donnelly wrote was that he had “carefully considered” the comments by the complainant in his correspondence of 21 May 2016 (resent on 25 Aug. 2016). Although the complainant had presented a report with clear enough evidence from a senior scientist from the University of Otago in Wellington, Mr Gordon Purdie (NZMJ, Vol. 128, No 1425, of 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 ), proving that Dr Bratt has misrepresented statistical reports and used these in ‘presentations’ to influence medical practitioners, the Ombudsman seemed little interested in looking into this any further.

He referred to former Ombudsman Ron Paterson’s ‘finding’, quoting him by writing that the complainant had “insufficient personal interest in the issue of Dr Bratt’s record-keeping”. So Mr Donnelly considered the following: “I do not see the link between your expressed concerns about Dr Bratt’s professional competency and a personal interest in Dr Bratt’s record-keeping.” He suggested Dr Bratt’s professional standards would “most appropriately be addressed by his professional body, not a layperson, such as myself”. He did not propose to investigate the complainant’s separate complaint about Dr Bratt’s ‘record-keeping’.

The complainant explained in some detail in his response of 28 Oct. 2017, that Dr Bratt could only be held to account by his ‘professional body’ (the Medical Council of New Zealand) for providing a service in the form of ‘practice of medicine’ (i.e. medical treatment). But he was not doing this, as a senior Advisor to MSD, he wrote. Hence the advice by the Ombudsman was “not helpful”, he commented. He also wrote that there were more serious matters to consider, it was not just about ‘record-keeping’. Through misrepresenting ‘evidence’ Dr Bratt was potentially putting WINZ clients with health conditions and disabilities at risk of suffering harm, he asserted. Nevertheless, the Ombudsman maintained his evasive view in his final opinion of 14 Nov. 2017, writing only: “Your comments are noted. I am still of the view that your personal interest in Dr Bratt’s record-keeping is insufficient”.

Unresolved concerns by the complainant

And following the extensive complaint correspondence, the complainant wrote once again on 16 Nov. 2017, expressing his disappointment about the ‘final opinion’ of Ombudsman Donnelly, and commenting, that the complaint had not been fully resolved. The short and blunt response by the Senior Investigator was – as already mentioned above:
“Your letter has been received and noted and placed on the file. The Ombudsman has completed his investigation of this complaint on the basis discussed in his letter of 14 November. The file will be closed once the Ministry advise this Office they have released the information discussed in respect of Requests 2, 4 and 7.”

So there was NO willingness from the side of the Office of Ombudsmen, to enter into any further communications re this complaint with the complainant (see again ‘PART 13’).

Summary Conclusion

So in summary, considering all of the above, it is evident, that the Ombudsman did not bother to firmly hold MSD to account for all of its failings, like not providing certain information from the start, and not providing reasons for this (required under section 19 OIA). He was somewhat casual in ‘resolving’ the complaint, as it appears, or rather the Investigator doing the actual ‘investigative’ and preparatory decision forming work. MSD were allowed to change their responses while they moved ahead in dealing with the Ombudsman, changing refusal grounds as they saw fit, offering some limited additional information in the end. They also suddenly raised new refusal grounds, where they had initially given no grounds at all. MSD was allowed to do this retrospectively, by providing a report to the Ombudsman, and during further communications, as it seems. MSD was allowed to withhold, or not present, some information that must certainly exist in their records, e.g. the ‘on-site addresses’ of service providers for MHES and SPES, as each Office would regularly refer some clients to such services. This would not happen by sending them to contact a ‘head office’. Also was MSD let off when it came to providing actual standard forms of ‘advice’ and ‘expectations’ communicated by its Advisors to health or medical practitioners, as Principal Health Advisor Dr Bratt must certainly hold such information in his own office, which can be considered to be a ‘centralised repository’ for such information. All that they did in the end was present a copy of an outdated ‘Guide to Designated Doctors’, from about 2008, of which the complainant and information requester already had a copy (obtained in 2011).

And of even greater concern is the fact, that the Ombudsman has again shown, that he is not interested in investigating the conduct of a senior Advisor to MSD, Dr David Bratt, despite of compelling evidence of his misinterpreting and misrepresentation of statistical and scientific reports, from which he picks what he sees fit (out of context), and into which he reads what he wants others (e.g. medical practitioners signing medical certificates) to believe and act upon.

Ombudsman Donnelly appears to have more faith in the responses and explanations given by MSD staff and their Chief Executives, rather than take more serious the information requests, and evidence, presented by ordinary individual information requesters and complainants. This again raises questions about the slogan ‘Fairness for All’ used by their Office.

We present all this information, so to leave it to the readers here, to make their own judgment on the quality of Ombudsman Donnelly’s responses and ‘opinions’ that he formed. We also present the OIA released information, which MSD provided at first on 26 Feb. 2015, and then over two and a half years later on 22 Nov. 2015, so that people have access to what really goes on at the Ministry and its offices all over New Zealand.

From the finally released data on enrolments and employment outcomes for the MHES and SPES, which is sufficient for that purpose, we can say with confidence, that the so called ‘trials’ were NOT the kind of ‘success’ that some had proclaimed they were. That does in particular apply to the MHES. It was a costly and risky experiment conducted on persons with ‘common’ or ‘moderate’ mental health conditions.

That has in the meantime been quietly admitted, and swept under the carpet by MSD, as some reports found under the following links show:

‘Back-to-work programme labelled a fail’, New Zealand Herald article, 17 Sept. 2015:
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11514141

Parliament’s Hansard with a question by Carmel Sepuloni, then Labour’s Spokesperson for Social Development, Question Time, 17 Sept. 2015:
https://www.parliament.nz/en/pb/hansard-debates/rhr/document/51HansS_20150917_00000477/sepuloni-carmel-oral-questions-questions-to-ministers

An OIA response by MSD, including an evaluation report on MHES, dated 23 Nov. 2016:

Click to access 20161123-questions-re-work-to-wellness-services-and-mental-health-employment-services-va15546757.pdf

Info on a replacement ‘Work to Wellness’ service that MSD has apparently by now started:
https://www.gets.govt.nz/MSD/ExternalTenderDetails.htm?id=17378666

 

Post updated and finalised – 28 January 2018

 

Quest for Justice

 
 

An easier to read PDF copy of this post can be found via this link:
MSD Release OIA Info On Failed MHES Trials 3 Years Late, Only Upon Advice By The Ombudsman, Report, 28.01.18

Another post about ‘Designated Doctors’, to whom some references were made in the above report or ‘post’, may also interest the reader. It can be found via these links:
https://nzsocialjusticeblog2013.wordpress.com/2013/12/28/designated-doctors-used-by-work-and-income-some-also-used-by-acc-the-truth-about-them/

Click to access designated-doctors-used-by-winz-msd-the-truth-about-them-post-upd-18-10-2016.pdf

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


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

 

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

 
 

CONTENTS:

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

 
 

A). BACKGROUND

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

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

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

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

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

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

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

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

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

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

 
 

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

 

THE OIA REQUEST

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

MSD’s INITIAL OIA RESPONSE

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

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

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

 

Author’s Comments:

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

 
 

C). OMBUDSMAN COMPLAINT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

OMBUDSMEN OFFICE RESPONSES

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

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

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

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

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

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

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

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

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

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

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

New, current PDF version (as on 19.09.16):

Click to access 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:

Click to access 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:

Click to access 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)

Click to access 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”).

Click to access 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!!!)

Click to access bratt-happy-docs-doctors-and-documents-presentn-2013-p-1-18-o-i-a-reply-09-2013.pdf


Click to access 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:

Click to access msd-working-nz-sdd-role-of-design-drs-memo-d-rankin-hi-lit-27-03-2006.pdf


Click to access msd-sdd-dr-d-rankin-gp-second-opinion-memo-05-06-2007.pdf


Click to access msd-design-dr-training-workshop-and-hd-coordntr-info-sheet-rankin-bratt-12-08-2008.pdf


Click to access msd-working-nz-work-foc-suppt-designated-doctor-training-resources-memo-2008.pdf


Click to access msd-des-dr-training-comm-requirements-j-russell-m-mortensen-memo-23-01-2008.pdf


Click to access msd-des-dr-training-comm-requiremts-j-russell-m-mortensen-memo-hi-lit-23-01-2008.pdf


Click to access 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:

Click to access 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:

Click to access 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

Click to access 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:

Click to access 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/

Click to access 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.

 

2 Comments

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:

Click to access 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:

Click to access 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

CORRECTION: This is the (identical) letter in a file with the CORRECT file name and date:
Ombudsman, complaint, MSD, failure to comply with OIA rqst fr. 08.07.15, anon, 22.11.15

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:
MSD’s Selective + Poor Responses To New OIA Requests, Post, NZSJB, upd., 27.11.15
(Please note that an earlier PDF file was replaced during an update of this post on 10 April 2018, as it contained a very minor mistake in a file name!)

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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MSD AND DR DAVID BRATT PRESENT MISLEADING “EVIDENCE”, CLAIMING “WORKLESSNESS” CAUSES POOR HEALTH


THE MINISTRY OF SOCIAL DEVELOPMENT (MSD) AND DR DAVID BRATT PRESENT MISLEADING “EVIDENCE”, CLAIMING “WORKLESSNESS” CAUSES POOR HEALTH

 

Medical scientific evidence is at best inconclusive, on the supposed “health benefits” of open employment

 
 

CONTENTS:

A) Introduction

B) Welfare reform: Progressive changes to work capability criteria and expectations

C) O.I.A. request for medical scientific evidence on harm to health through “worklessness”, and on MSD’s Health Advisor’s claims in presentations

D) MSD’s O.I.A. responses – failing to deliver convincing evidence

E) MSD’s repeated reluctance to provide official information – an analysis and interpretation of received information

F) A new issue with Dr David Bratt’s deletion of all email correspondence

G) Final conclusions

 
 

A) INTRODUCTION

 

Since taking over as the new government in 2008, following the Fifth Labour Government, the New Zealand National Party has during three terms in government brought about continued, very substantial and somewhat draconian reforms to the social security system in New Zealand. These were the most profound changes to the welfare system that had been made since a previous National government’s radical social policy changes from 1990 onwards, accompanied by the infamous “Mother of All Budgets” in the year 1991. Under the then Finance Minister Ruth Richardson and Social Welfare Minister Jenny Shipley, severe cuts were made to benefits. These measures were followed by imposing stricter eligibility rules and longer stand down periods for benefits, and also radical changes to labour laws with the introduction of the Employment Contracts Act. In 1996/97 the Fourth National Government introduced some further reforms, which were though partly reversed again by a Fifth Labour Government from 1999 onwards. While during the years up to the mid 1980s most welfare reforms included further improvements for those dependent on benefit support, like more generous benefit payments and sundry other support, the changes brought in under National from 1990 to 1998 cut back on social security spending. The intention was to provide “more tightly targeted” welfare support.

The Fifth Labour Government did from 1999 up to 2007/08 bring in other new social welfare changes taking social policy into a new direction. That Labour led government did bring in a new approach to social security, by re-focusing on the concept of “social development” to be integrated with economic development. Apart from some improvements in the years 1999 to 2004, that government introduced new, additional expectations and stricter obligations for those claiming benefits – also for single parents with dependent children and some with sickness and disability. A new policy approach, that was to be gradually introduced, was designed to encourage parents with dependent children and also sick and disabled back into work. It followed some selected reform approaches tried in the United Kingdom (U.K.) and other jurisdictions.

But the latest major changes to the social security system took effect from 2010 to 2013 under the recent and current Fifth National Government. These were the most profound ones since the introduction of the former ‘Domestic Purposes Benefit’ in 1973 and the severe benefit cuts in 1991. Like Labour, National looked at the UK, to adopt new approaches. Some of these more recent social policy changes that were introduced in New Zealand under the so-called ‘Future Focus’ package, and after that also with the ‘Social Security (Benefit Categories and Work Focus) Amendment Act 2013’, were firmly based on radically different, new approaches adopted from the United Kingdom. The U.K. has itself experienced a gradual and wider range of reforms in the social security area, going back as far as to the governments led by former Prime Minister Margaret Thatcher and John Major. Reforms continued there under Labour governments led by Tony Blair and Gordon Brown, and have over recent years been accelerated yet again under the Coalition government under Conservative Party leader and Prime Minister David Cameron. Many of these reforms from the late 1990s and the first decade of the 2000s included a gradual change in the way persons on benefits granted on grounds of sickness, injury and incapacity (resulting in disability) are being assessed for work capability.

New Zealand governments tend to “learn” from – and follow – a fair few systemic and legislative changes that are first made in the U.K., and integrate these into their own policy framework, and then bring in new laws or amend legislation here. New Zealanders, particularly those with sickness, injury and forms of incapacity, who may at some time in their lives become dependent on social security benefit support, should be very concerned about the changes that have been adopted from the U.K.. This is, because apparently much – if not most – research, that was relied on when introducing new assessment methods and a more forceful work expectation approach as part of the new welfare policy now in place here in New Zealand, comes from just one major research centre in Great Britain, and some “expert” directly or indirectly linked to it.

This is the so-called ‘Centre for Psychosocial and Disability Research’, formerly known as the ‘UnumProvident Centre for Psychosocial and Disability Research’, as it was for years also funded by the insurance company UNUM. Even more recently it has been renamed yet again, and is called the ‘Centre for Psychosocial Research, Occupational and Physician Health (PROPH)’. The Director of that Centre, a Professor Mansel Aylward, did for many years collaborate with UNUM, already when employed as Chief Medical Officer for the Department of Work and Pensions (DWP) in the U.K.. He played a significant role in developing new strategies and approaches in assessing work capability, and he was also instrumental in creating the predecessor for what is now known as the ‘Work Capability Assessment’ (WCA) used in the U.K.. As the former Chief Medical Officer for the ‘Department of Social Security’ (DSS, to become the DWP in 2001) Dr Aylward did in cooperation with UnumProvident’s former Vice President John LoCascio initially devise the ‘All Work Test’ that was recommended to and then used by the DSS for assessing sick and disabled for their work capability. That test was later changed a bit to become the Personal Capability Assessment (PCA), which was changed again to become the WCA. The new tests were introduced to replace the sole reliance on a person’s own general practitioner’s diagnosis and assessment that was used until 1995. In the U.K. the former ‘Invalidity Benefit’ was in 1995 replaced by the ‘Incapacity Benefit’, and the PCA was also used after then. The then ‘New Labour’ government did in 2007 or 2008 introduce the new ‘Employment and Support Allowance’ (ESA), for which the WCA was the new used assessment.

Much of the supposed “research” and “findings” that were used as the scientific basis and justification for assessing many sick, injured and incapacitated persons as “fit for work”, comes from researchers and advisors such as Prof. Aylward, and a small number of his colleagues, who are directly or indirectly linked to the mentioned Centre in Wales. They base their research and recommendations on a rather selectively interpreted form of the “bio psycho social model” for diagnosing, assessing and treating sickness and incapacity. Dr Aylward has been regarded by U.K. governments as an “expert” in his field, which must though be viewed as being so, partly due to the usefulness of his findings, in putting into place higher thresholds for qualifying for benefits on health grounds and disability.

Before and while the recent New Zealand welfare reforms were being discussed, formulated and proposed as new policy for the Department of Work and Income (WINZ, as part of MSD), Prof. Mansel Aylward was besides of a selected few other “experts” invited to both Australia and New Zealand, to “inform” leading medical professional organisations and governments of his new “findings” on the “health benefits of work”. The Ministry of Social Development’s newly established Principal Health Advisor, by the name of Dr David Bratt, did at around the same time fully adopt these new ideas, “findings” and approaches from the U.K.. He has since at least 2010 actively been promoting them, through a number of presentations and speeches he has given to medical professional groups and organisations. He has for instance repeatedly been speaking to general practitioner (GP) conferences and also to medical trainers and trainees, to present his rather selectively chosen information, that is supposed to support the findings by researchers like Aylward et al. Dr Bratt has as Principal Health Advisor during at least 2012 and 2013 also had meetings with Dr Aylward and others, and facilitated their participation and input into a MSD selected ‘Health and Disability Panel’ that advised MSD and the government on welfare reform involving health and disability aspects.

Since the introduction of a new ‘Work Capacity Medical Certificate’ by MSD and Work and Income, and new assessment measures based on the mentioned “research”, few appear to have raised serious questions about the validity and robustness of certain used statistics and supposed medical scientific “research” that MSD now rely on. Hence we saw a need to put questions to MSD about this, and an Official Information Act (O.I.A.) request was filed by a trusted person, who was himself very negatively affected by the rather controversial new approach. MSD was asked to present relevant sources and evidence to back up the partly bizarre and bold claims made by Dr Bratt and MSD, particularly in Dr Bratt’s various presentations, which have been delivered to gatherings of medical practitioners and rehabilitation professionals. Also is Dr Bratt responsible to “train” the ‘Designated Doctors’ that MSD and WINZ use for providing supposedly “independent” second opinions on beneficiaries’ health and disability. Dr Bratt has repeated some of his quotations and claims in a number of interviews to the mainstream media, who published his “evidence” in some reports.

This post reveals how limited, inconclusive, poor and at least in part very unconvincing many of the sources and findings are, that Dr Bratt has been using, when supposedly “informing” his target groups about the “evidence”, reasons, purposes and justifications of the new assessment approaches now in place. As MSD appeared to be very reluctant to present much information at all, it became even necessary to make a complaint to the Office of the Ombudsmen, to try and obtain remaining asked for information, which was only forthcoming many months later, again only in small bits. Regrettably further requests to the Ombudsman to hold MSD to account for not providing much of the requested information were without success, and a separate post may follow at a later stage, which exposes, how ineffective even the Office of Ombudsmen is, in holding key government departments and personnel to account for their decisions and actions. Most disturbing was also the discovery, that Dr Bratt had apparently deleted “all” of his emails and possibly other records covering his correspondence and contacts with Professor Aylward, and others, and truly bizarre explanations were given for this. That separate matter of concern has been the reason for yet another complaint to the Chief Ombudsman to look into this, as it appears there may be a breach against the Public Records Act 2005.

 

For some revealing information about Prof. Aylward and his research, read the following:

 

Vox Political, UK website, on Prof. Aylward, his role in introducing work tests, 18 January 2013:

Unum, Atos, the DWP and the WCA; Who gets the blame for the biopsychosocial

http://voxpoliticalonline.com/tag/personal-capability-assessment/

Black Triangle Campaign with one of their posts on Prof. Aylward, from 09 Sept. 2012:

Professor Mansel Aylward ~ My! What ‘A Very Tangled Web’

 

Some other links to information on Prof. Aylward and the yet again renamed “Cardiff Centre”:

http://sites.cardiff.ac.uk/experts/professor-sir-mansel-aylward-cb-dsc-ffpm-ffom-ffph-frcp/
http://medicine.cf.ac.uk/primary-care-public-health/research/proph/
http://medicine.cardiff.ac.uk/contact/cpdr/
(links worked 18.09.16):

 

A link to one of Prof. Aylward’s presentations Worklessness and Health: A Symposium:

Click to access media_210440_en.pdf

 

The AFOEM position statement The Health Benefits of Work, introduced and promoted by Mansel Aylward in 2010, and updated over recent years. It is now found under another link on the Royal Australasian College of Physicians (RACP) website, which is used to justify the new approaches in work ability assessments:

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

This is the new web-page of the RACP College, with further information (new links as on 18 Sept. 2016):
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

(they and other vested interest parties have over time been changing their websites and appear to have restricted access to information formerly made available, as they seem concerned about revelations made by some advocates! Much formerly available information appears to have been deleted!)

Working for a healthier tomorrow, ‘Dame Carol Black’s Review of the health of Britain’s working age population’, TSO, London, 17 March 2008, UK Government:

Click to access hwwb-working-for-a-healthier-tomorrow.pdf

 
 

B) WELFARE REFORM: PROGRESSIVE CHANGES TO WORK CAPABILITY CRITERIA AND EXPECTATIONS

 

Under the last New Zealand Labour led government a change of approach was taken towards more pro-actively assisting not only single parents on the ‘Domestic Purposes Benefit’ and ‘Widows Benefit’ (DPB and WB) back into work, but also towards “encouraging” persons with longer term sickness and disability – being dependent on social security benefits – into paid work. A ‘Sickness and Invalid’s Benefit Strategy’ was introduced by the Ministry of Social Development (MSD) in 2004.

A policy package called Working New Zealand was introduced and then implemented through changes to the Social Security Act 1964. The package was based on new approaches that had been adopted and introduced in the U.K., which was based on the assumption that “work in paid employment offers the best opportunity for people to achieve social and economic well-being” and “the priority for people of working age should be to find and retain work”.

As part of an over-arching ‘Working for New Zealand’ package, ‘Working for Families’ (WFF, introduced 2004 and implemented from 2005) offered incentives for persons with children and on low income to resume or stay in work, in the form of WFF tax credits. Under ‘Working New Zealand’ there were though few or no direct financial incentives offered to persons remaining dependent on benefits – with or without dependent children. They were rather facing disincentives and penalties if they would not make efforts to prepare for resuming work or to participate in training. One controversial measure was taken in 2005 to phase out the special hardship assistance called ‘Special Benefit’ from 2006, which was replaced by a new benefit component, called ‘Temporary Additional Support’ (TAS). That new supplement was not only capped at about 30 percent of the base benefit rate, it offered Work and Income (WINZ) case managers less flexibility and did leave beneficiaries in hardship worse off than if they were still able to claim the ‘Special Benefit’. The Fifth Labour Government ignored that increases in claims for the former ‘Special Benefit’ were driven by the inadequacy of core benefits, which made it increasingly difficult for families to survive on a core benefit alone.

Under a ‘Working New Zealand: Work-Focused Support’ package a new approach with new requirements and obligations for beneficiaries was brought in. The stated aim was to “increase opportunities for people to participate in the labour market, where work is an appropriate outcome“.

Not dissimilar to comments we have heard from ministers under the present National led government, the then Minister of Social Development and Employment, David Benson-Pope commented: „If we take no further action, assuming that current trends and practices continue, it has been estimated that the cost of supporting the existing population of beneficiaries (as at June 2005) over the lifetime of their claims on Domestic Purposes Benefit, Sickness Benefit and Invalid’s Benefit represents a future liability of $25 billion to the State”.

The new work-focused package was intended to ideologically reframe the social security system around a focus on citizens’ obligations to work – with no corresponding responsibility by the state to provide decent jobs and adequate wages. It was not so much based on ‘evidence’, but following similar efforts by governments in the U.K., the intention was to simply increase work expectations, and rather send signals to potential future benefit claimants, and to the public at large, that work has priority to support in the form of benefits. It was rather about saving welfare costs in the future.

Then Minister David Benson-Pope was quoted with the statement: “The ability to work is often constrained by factors that a person may have little control over, such as the availability of childcare or mental health support services that are necessary for a person to work. Taking into account the context of a person’s daily life requires acknowledgement of and support to address these barriers if employment is to be a realistic outcome”.

Trials of the new service delivery model and the integrated “work focused” approach were conducted from mid 2005 onwards at 12 Work and Income service centres and two contact centres. Part of the new approach were “pre assessment processes”, such as putting clients into certain priority streams like ‘Retention in Work’, ‘Early Response (Rapid Return to Work)’, ‘Work-Focused (Able to Work but not Immediately)’ and ‘Work-Unlikely’ (e.g. people with terminal cancer) categories. Seminars were offered and work brokerage services were expanded. Initially only new applicants were offered and could voluntarily attend certain seminars. But from September 2006 also existing beneficiaries would gradually be approached and asked to participate in case management and employment assistance efforts. Those in the ‘Work-Unlikely’ stream were not offered assistance to employment, but they could access services if they expressed an interest to participate.

From 01 July 2005 Invalid’s Benefit recipients, who had previously only been able to work no more than 15 hours per week before they lost entitlement to the benefit, could with the agreement of their Case Manager, work 15 hours or more per week for up to six months without losing their benefit of entitlement. This was offered as an incentive for some persons with severe and long term sickness and disability, to trial work. Additional employment services were introduced for those suffering illness and/or disability, involving employment coordinators, vocational assessment tools and some targeted health interventions. These service additions were intended to reduce the time persons with ill health and disability may stay on primary income support.

Through the ‘Social Security Amendment Bill 2006’ three of the trialled streams were introduced in the form of ‘Work Support’, ‘Work Support Development’ and ‘Community Support’ (the latter for DPB and IB recipients). While participation in the new service model and up-front work-focuses services prior to benefit receipt was still voluntary during the mentioned trials (which most that were approached accepted), the new Bill provided for compulsory participation in certain services. From September 2007 on, it would become mandatory for unemployed persons applying for a benefit to participate in “pre-benefit activities”. There were also additional requirements introduced for persons being work-tested. Planning and activity requirements were brought in for sickness and invalid’s beneficiaries, and for spouses or partners of beneficiaries with a dependent child under 6. Sick and disabled were subjected to the same planning and activity requirements and sanctions as DPB and WB recipients. Failure to meet requirements would result in benefit cuts. The new Bill clearly indicated that sickness or disability would no longer be considered a good reason to be out of work, particularly given the enhanced employment assistance for sickness and invalid’s beneficiaries provided during the trials. While also offering some other, perhaps minor improvements, the Bill removed much discretion, imposed more regulation and introduced a greater degree of coercion for many dependent on social security benefits.

The last Labour government also had plans to move towards a single core benefit, but given the continued discussion and lack of agreement as to how to re-design the system to facilitate this, and the fact that Labour lost the general election in 2008, this plan was never proceeded with.

Along with the changes that resulted from the passing of the Social Security Amendment Act 2007, which enacted new provisions proposed with the Social Security Amendment Bill 2006, MSD created senior advisory positions in the form of Principal Health Advisor, Principal Disability Advisor, and a number of subordinate advisory positions in the form of Regional Health Advisor and Regional Disability Advisor. Also were further supportive positions of Health and Disability Coordinator created. These positions were appointed by the Chief Executive of MSD under section 41 of the State Sector Act 1988. The mentioned Principal Advisors were commissioned with offering both “strategic leadership” and “advice” to Work and Income staff, particularly the Regional Health and Disability Teams, on health and disability matters. They were tasked also with giving medical and expert advice on individual cases, where the subordinate Advisors may need further guidance. Also was and still is their role to liaise with health professionals like general practitioners (GPs), with Work and Income’s “Designated Doctors” and with health and disability service agencies and providers in the community.

Since 2007 the same originally appointed Advisors have been active in their roles, and this includes the more prominent Principal Health Advisor is Dr David Bratt, who formerly worked as an advisor for the Capital and Coast District Health Board, and who is himself a qualified GP. In 2008 MSD conducted a “designated doctor training program” through meetings held across the country, where Dr Bratt and the former Ministry Advisor Dr Rankin informed Work and Income’s contracted doctors of the Ministry’s processes and expectations in regards to medical examinations and certification done on WINZ clients with health conditions and disability. Such training continues to this day, but is no longer held through group meetings, but is rather offered less formally by way of ongoing consultations on changes to processes, and at times on a case by case basis.

The whole new medical and work capability assessment approach appears to lean heavily on what certain “experts”, mostly from the ‘Centre for Psychosocial and Disability Research’ (formerly “sponsored” by UNUM Provident insurance) based at Cardiff University in Wales, U.K. have been presenting as “research findings” over recent years. The Director of that Centre, Professor Mansel Aylward, who was once also Chief Medical Officer for the UK’s Department for Work and Pensions (DWP), has played a major role, and he was also behind a controversial work capacity test that preceded the now still used ‘Work Capability Assessment’ (WCA), which has also been heavily criticised by disabled, their representative organisations, by advocacy groups and also health professional representatives in the U.K., for failing especially persons with mental health conditions.

There have been further changes to the social security system in New Zealand, which culminated in a major reform drive under the former and present National led governments. More work test requirements, conditions and harsher sanctions were introduced in 2010 for sole parents with dependent children, and also for persons on the former sickness benefit under the “Future Focus” policy. Effective from July 2013 there were radical changes made to the benefit categories, merging seven former ones into only three main benefit types, and yet more expectations and requirements were introduced for the same kinds of groups of beneficiaries, with yet higher expectations for sick and disabled to also prepare and look for work. Advisors from the U.K. were consulted, and new approaches tried there (with rather disastrous results) were in part adopted here, so as to now consider persons with health conditions, injury and disability as also in most cases being “fit” for certain, “suitable” work. This approach is based on a change of criteria for assessing persons’ sickness, injuries, impairments and capability to work. Like in the U.K. the focus is now rather on what persons can hypothetically do, rather than what they cannot do (physically and mentally).

Throughout the continued reforms, there has been a lack of transparency in regards to how medical and work capability assessments are now being conducted, what solid medical scientific advice is being relied on, to apply a more stringent approach, where even persons with serious mental health conditions are increasingly approached, to not go or stay on the now introduced ‘Jobseeker Support – Deferred’ benefit, and rather try and find and stay in work. There has been anecdotal evidence of some of Work and Income’s “Designated Doctors” making bizarre, questionable recommendations, which are at times in stark contrast to what a client’s own doctor may have diagnosed. In some cases bias has been suspected, and like in the UK, more people raise questions about the justification and appropriateness of the new, stringent approach with putting higher expectations on sick, injured and disabled to work in employment on the competitive, stressful, open job market.

Since at least 2010 Dr Bratt has as Principal Health Advisor given a number of presentations and speeches to meetings of health practitioners and other health professional organisations, in which he has made some bizarre and bold comments, references and statements. Repeatedly he likened “benefit dependence” to “drug dependence”, and his presentation (apparently backed by his colleague Anne Hawker) called Ready, Steady, Crook – are we killing our patients with kindness?, is a typical example of how heavily he appears to rely on selectively gathered statistical and other information.

This post will present information that had been sought from MSD, to offer explanations and medical scientific information, to support the unconvincing information Dr Bratt has regularly used in many of his presentations. Only two direct responses were delivered upon a request filed on 16 January 2014, and only limited further comments and explanations were obtained recently, with the rather “humble” assistance from Ombudsman Professor Ron Paterson.

 

For some useful information on welfare reforms it is also worth reading the following publications:

 

‘WORKING FOR NEW ZEALAND’: A Background Paper on Recent and Proposed Welfare Reforms in New Zealand, Louise Humpage, Public Policy Group, University of Auckland, March 2007

Click to access Humpage%20Welfare%20forum%20background%20paper%20Mar%2007.pdf

‘ESCAPING THE WELFARE MESS?’, Susan St John and Keith Rankin, Working Paper Nr 267, Revised December 2009:

Click to access WelfareMessrevised09.pdf

 
 

Other information of interest can be found in the following publications via links here:

 

Sickness and Invalid’s Benefits: New Developments and Continuing Challenges, MSD website, plus link to relevant PDF with report by Neil Lunt, Social Policy Programme, Massey University, published in ‘Social Policy Journal of New Zealand’, Issue 27, March 2006:

https://www.msd.govt.nz/about-msd-and-our-work/publications-resources/journals-and-magazines/social-policy-journal/spj27/sickness-and-invalids-benefits-27-pages77-99.html

Click to access 27-pages77-99.pdf

 

Understanding the Growth in Invalid’s Benefit Receipt in New Zealand

By: Moira Wilson, Keith McLeod, Centre for Social Research and Evaluation, Ministry of Social Development, from ‘Social Policy Journal of New Zealand’, Issue 29, Nov. 2006:

http://www.msd.govt.nz/about-msd-and-our-work/publications-resources/journals-and-magazines/social-policy-journal/spj29/understanding-the-growth-29-pages127-145.html

Click to access 29-pages-127-145.pdf

Welfare in New Zealand, Wikipedia:

https://en.wikipedia.org/wiki/Welfare_in_New_Zealand

 

‘Office for Disability Issues’, website:

http://www.odi.govt.nz/nzds/work-plans/2007-08/dpt-social-development.html

See:

“4) Work and Income” …

“2) Working New Zealand, Work Focused Support: Support and Services for People in Work Development Support and Community Support Service Streams project(t)”

OAG, Office of the Auditor General, website publication:

‘Part 2: The Working New Zealand: Work-Focused Support Programme’

http://www.oag.govt.nz/2009/social-development/part2.htm

 

OAG, Office of the Auditor General, website publication:

‘Part 3: Determining eligibility for sickness and invalids’ benefits’

http://www.oag.govt.nz/2009/social-development/part3.htm

 

‘Social Security Amendment Act 2007’ (changes introduced through the ‘Social Security Amendment Bill 2006’):

http://www.legislation.govt.nz/act/public/2007/0020/latest/DLM408545.html

 

‘Working for Families’, Wikipedia:

https://en.wikipedia.org/wiki/Working_for_Families

 

‘Left Further Behind 2011’, Chapter 6, Working for Families; a Child Poverty Action Group (C.P.A.G.) Monograph, M. Claire Dale, Mike O’Brien, Susan St John:

Click to access 2011%20Lfb%206%20%20St%20John%20Working%20for%20families.pdf

Can the ‘In Work Tax Credit’ be justified as an in-work benefit?, Susan St John and M Claire Dale, NZEA annual conference 2009:

Click to access PresentationEconomistconference.pdf

‘THE TEN MYTHS OF THE ‘IN WORK TAX CREDIT’, Susan St John, C.P.A.G.:

Click to access CPAG%2010%20MYTHS%20IWTC.pdf

Re: Appointments made by the Chief Executive of MSD – of a Principal Health Advisor, a Principal Disability Advisor and various Regional Health and Disability Advisors: See ‘State Sector Act 1988’

http://www.legislation.govt.nz/act/public/1988/0020/latest/whole.html#DLM5478489

Read section 41 for details on the power of the Chief Executive to delegate powers and/or functions, also to employees and advisors.

 

 

C) O.I.A. REQUEST FOR MEDICAL SCIENTIFIC EVIDENCE ON HARM TO HEALTH THROUGH “WORKLESSNESS”, AND ON MSD’S HEALTH ADVISOR’S CLAIMS IN PRESENTATIONS

 

Questions put to MSD in an O.I.A. request from 16 January 2014:

1. Information in the form of clear statistical evidence of Dr David Bratt’s claims in his presentation ‘Ready, Steady, Crook – Are we killing our patients with kindness?’ (presented in Christchurch, 2010), that 30 % of GP’s “had experienced a sense of threat and intimidation” (see page 32), which in context of the presentation appears to be coming from patients seeking medical certification for sicknesses and/or disabilities (for Work and Income benefit receipt).

As this appears to be based on a kind of survey, I request a copy of the authentic survey result report this information is based on. If the report is not held by the Ministry of Social Development or Work and Income, I do in any case ask for a clear reference to where that particular information is documented, held and can be found. I also ask for a transcript or copy of the original questions asked in that survey. I furthermore ask for information on whether this is information that relates to the whole practice time that GPs have had in their past lives, or whether it was based on experiences in annual or other time defined periods. I request your clarification, whether a distinction was made in the survey question(s) between a sense of threat and a sense of intimidation, and whether any particular details on the kinds of threats or intimidation were given. Furthermore I ask for information on the frequency of such experiences GPs may have had over defined periods.

2. Dr David Bratt has, in his capacity as the Principal Health Advisor for the Ministry of Social Development, regularly made presentations of the types just mentioned under ‘1.’ above, which was to GP conferences and other health professional meetings, which contained a range of apparently statistical data, for which the exact source has in some cases not been clearly given. Another such presentation is Medical Certificates are Clinical Instruments Too (from 2012). He has repeatedly stated the above claims on presentations bearing logos and other details, showing that they are apparently Work and Income authorised.

On the pages 13, 20, 21 and 35 of ‘Ready, Steady, Crook’ Dr Bratt makes references and comments in which he likens or compares “benefit dependence” to “drug dependence”. I seek information from the Ministry of Social Development (MSD), whether it is the official position of MSD and Work and Income (WINZ) that benefit receipt is “addictive” like a “drug”, as suggested by Dr Bratt on page 35, where it reads: “the “benefit” – an addictive debilitating drug with significant adverse effects to both the patient and their family (whānau) – not dissimilar to smoking”. Dr Bratt also commented in an article in the “NZ Doctor” publication from 01 August 2012 that – quote: “Long term unemployment has been shown as bad as smoking 10 packets of cigarettes daily”. He continues: As a drug, it would be an addictive, debilitating substance, he told the RNZCGP education convention. If the Ministry shares the comments and views of Dr David Bratt, I ask for clear medical scientific evidence that this is the case, and I also ask for references to scientific reports proving this, preferably quoting information from such reports. It would assist if the Ministry could provide some consistent scientific evidence of this, from preferably a number of scientific reports and sources.

3. Further to the presentation Ready, Steady, Crook, on page 32 there is a range of other statistical data mentioned, which is also claimed to come from a “GP survey”, it includes claims that of GPs surveyed on (apparently related to medical certification and associated) pressures they faced, that about 71 felt it was a mechanism to provide income to the patient”, “55 % felt W&I staff created an expectation, 40 % – because they believed there was no work available and 31 % – felt W+I weren’t doing anything for the patient.

In relation to those “results” or “answers” form GPs, I ask the following:

a) Which particular survey/s do these “results” come from, and what were the exact questions asked in relation to the data presented in that – and certain other presentations – by Dr David Bratt?

b) Which of any of those alleged “pressures”, if any, had contributed to a GP’s decision on whether or not to, or how to complete, a medical certificate for a patient dependent on, or intending to apply for a benefit from Work and Income?

c) Which of any of those alleged “pressures”, if any, had given the GPs questioned the ultimate motivation, to issue a medical certificate or not, or to make any other determination on the specific way of completing medical certification?

4. Also in the same presentation Ready, Steady, Crook on page 23, and in certain other ones, Dr Bratt claims that according to both Australian and New Zealand studies there is a chance of it being only 70 percent likely that a person “ever” returns to work after 20 days off work, it being only 50 percent likely for a person to “ever” return to work after 45 days off work and it being only 35 percent likely for a person to “ever” return to work after 70 days off work.

Please supply copies of the authentic statistical evidence for this data to be correct and also current, and please provide the source information, or at least a clear reference to the report/s stating so, where records may not be kept by MSD or WINZ themselves. I also ask for clarification of whether the information in the mentioned presentation/s is relating to the chance to really “ever” return to any work, or whether it is rather referring to “ever” return to the same job that may have been held by a person until she/he got sick, injured, impaired and/or disabled, and was consequently forced to stop working due to that.

5. Please provide information on Dr David Bratt’s claim in a ‘NZ Doctor’ publication from 01 August 2012 (article by Lucy Ratcliffe), where he states: A UK study found of the main obstacles for going to work, medical problems made up just 3 % of the list. He has made similar claims in his various presentations. As the data appears rather unspecified and inconclusive, I request the clear scientific report data, and evidence, that this is the case. I seek information that Dr Bratt, MSD and/or WINZ hold on this study, and on the source of the report data. Please provide the information from the study that shows what exact questions to what study group of persons were asked, what detailed information was gathered under what criteria and scope. Does this apply to all working age persons simply going to work or trying to work, whether sick or not, of whom some suffer sickness, impairments and disability? Or was the studied group of persons actually made up of affected sick and disabled only? It is hard to believe that such a small percentage of sick and disabled on health related benefits are seeing their condition as an obstacle to work. This information is sought to clarify the claims made in the article and various presentations, as out of context information can easily misinform and mislead.

6. Dr David Bratt’s presentations list a fair amount of information, which he claims prove the harms of “worklessness”, and of being out of work (for sickness, injury or possibly other reasons). Please provide information that Dr David Bratt has as Principal Health Advisor presented in similar kinds of presentations, or in other forms of communications, about the harms that exist at workplaces, about certain harms caused by work, about certain types of work causing ill health or injury, and about insufficiently equipped and organised work places, or particular work practices, work duration, or any other aspects relating to work or employment, that may be causing harms to health and safety of workers. This is for the case Dr Bratt has such information, and that he has gathered, obtained and/or prepared such information for the Ministry of Social Development and/or Work and Income. It must be presumed, or at least be expected, that the Ministry is equally concerned about these issues, which beneficiaries referred into open or other employment may face.

7. Please provide information that Dr David Bratt as Principal Health Advisor may have gathered, obtained, prepared and presented, which gives details about the negative and harmful health effects of suffering from relative or general poverty, instead of simple worklessness, that people on benefits or in low paid work may face. There have been international studies on the effects of poverty, and how poverty does affect the health and well-being of adults and their children, irrespective of their employment status. I am interested to receive such information that Dr David Bratt has on file, that the MSD or Work and Income may have on file in their archives, that is being used to raise awareness on these matters, which are of serious concern, apart from concerns about employment of beneficiaries and their dependents.

8. I also request information that Dr Bratt may have gathered, obtained, prepared and presented, that states that the quality of health of a beneficiary, who suffers from sickness, illness, physical or mental impairment and disability, may rather much more depend on individual circumstances, and that some simple forms of physical activity or mental activity, other than work in the form of “open employment” (for paid income), may prove more beneficial than putting such vulnerable persons under any expectations or pressures to seek and obtain paid work on the open job market.

9. Please provide a list of the various “research” sources and reports that Dr David Bratt has used for obtaining information for his various presentations (of the types as mentioned above), and please state clearly, which ones were from professionals like Dr Gordon Waddell, Professor Dr Mansel Aylward and others who worked at (and in cooperation with) the ‘Centre for Psychosocial and Disability Research’, formerly funded by “Unum Provident” (a US and UK based disability and health insurance provider), at Cardiff University in the UK. It would perhaps assist to also get a percentage rate for the contents of data from the “researchers” at that Centre, which has been relied on and used for Dr Bratt’s presentations. There is concern amongst the public, that Professor M. Aylward and some colleagues have repeatedly attempted to claim, that a high number of persons suffering “moderate” mental health or musculo-skeletal conditions actually only suffer from alleged “illness belief”.

10. Please provide information on the times, dates, types of and purposes of contacts, meetings and communications (including correspondence) that Dr David Bratt had with

a. Professor Dr Mansel Aylward (from the ‘Centre for Psychosocial and Disability Research’, Cardiff University),

b. Dr David Beaumont (formerly ATOS employee, from the UK, now ‘Pathways to Work’ director, and advisor to MSD, and formerly also to ACC), and

c. Dr Gordon Waddell (‘Centre for Psychosocial and Disability Research’) –

in the course of performing his duties, and also otherwise, while holding his position as Principal Health Advisor for MSD and Work and Income.

Dr David Bratt has in his capacity as the senior advisor for the Ministry of Social Development, on health conditions and related matters affecting Work and Income beneficiaries, regularly held speeches and presentations (as listed above). He has at such occasions been presenting PDF, PowerPoint or similar presentations, detailing aspects of the subject matters he would cover.

The above specified information is sought for reasons of providing public transparency and accountability, and assurance in Dr David Bratt’s professional competency and integrity as Principal Health Advisor for the Ministry, while being a qualified medical practitioner in a public service role. As he is commissioned with communicating to medical practitioners and other health professionals, the information that MSD and WINZ deem essential to present, in order to facilitate the effective co-operation between staff working for the Ministry and health professionals, there is a strong public interest that this information is made available.

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, 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

 

Xxxxxxxxx Xxxxxxxx

 
 

Sundry reference information on Dr David Bratt’s presentations – and of his comments quoted in media reports – can be found via the following links:

1) ‘Ready, Steady, Crook – Are we killing our patients with kindness?

Click to access C1%201515%20Bratt-Hawker.pdf

(presentation by Dr D. Bratt and A. Hawker, for Work and Income, to GP conference in Christchurch, 2010, see pages 13, 20, 21 and 35 for comparisons to drug dependence)

 

2) ‘Medical Certificates are Clinical Instruments Too!’

Click to access Fri_DaVinci_1400_Bratt_Medical%20Certificates%20are%20Clinical%20Instruments%20too%20-%20June%202012.pdf

(GP presentation by Dr D. Bratt, 2012, see pages 3, 16 and 33 for his likening of benefit dependence to “drug dependence”)

 

3) ‘Pressure – No Pressure’ (How to deal with “pushy” patients)

https://www.google.co.nz/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjtperG0pjPAhVKwGMKHe5TB_AQFggaMAA&url=http%3A%2F%2Fwww.rgpn.org.nz%2FNetwork%2Fmedia%2Fdocuments%2FConference2011%2FD-Bratt.ppt&usg=AFQjCNFEdYN_dDW9BAZvZo_cQpC2rFyelg&bvm=bv.133178914,d.dGo

(PowerPoint presentation by Dr Bratt, downloadable from the web, again likening benefit dependence to “drug dependence” and presenting a lot of selectively gathered information)

 

4) ‘Shifting Your Primary Focus to Health and Capacity – A New Paradigm’

Click to access WS%20142%20Bratt%20-%20Shifting%20Your%20Primary%20Focus%20to%20Health%20and%20Capacity.pdf

(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 employ-ability of women, see page 45!!!)

 

5) ‘Harms lurk for benefit addicts’

http://www.nzdoctor.co.nz/in-print/2012/august-2012/1-august-2012/harms-lurk-for-benefit-addicts.aspx

(article in NZ Doctor magazine, by Lucy Ratcliffe, 01 August 2012, where Dr Bratt is again quoted with his preposterous claims about benefit dependence being like “drug dependence”, and that: “A UK study found of the main obstacles for going to work, medical problems made up just 3 per cent of the list.”)

try this link if the above does not work:

Dr D. Bratt, MSD, ‘Harm lurks for benefit addicts’, article, NZ Doctor, 01.08.12, scan, 18.08.2012

*****Please search online under the title of the article, if the link does not work!*****

 

6) See also: 1 PDF file containing the position description for Principal Disability Advisor (original from 2007), received with an earlier O.I.A. reply from MSD:

MSD, O.I.A. Request, Princ. Health Advisor, position description, highlighted points, Jan. 2007

 

7). See the anonymised letter containing the questions put to MSD on 16 Jan. 2014:

MSD, O.I.A. rqst, re Dr Bratt, presentations, contacts, anon. ltr w. questions, 16.01.14

 

8) See also the supposed “evidence based” position statement launched via the AFOEM from 2010 onwards, presented and promoted by Prof. Mansel Aylward, called ‘The Health Benefits of Work’, which is now found under another link on the Royal Australasian College of Physicians (RACP) website, which is used to justify the new approaches in work ability assessments:

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

This is the new web-page of the RACP College, with further information:

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

(they and some other vested interest parties have over time been changing their websites and restricted access to information formerly made available, as they appear concerned about revelations made by some advocates!)

 
 

D) MSD’s O.I.A. RESPONSES – FAILING TO DELIVER CONVINCING EVIDENCE

 

1. Response from 27 February 2014:

 

“27 FEB 2014”

 

 

“Dear XX XXXXXXXX”

“Thank you for your letter and email of 16 January 2014 requesting, under the Official Information Act 1982, detailed information regarding Dr Bratt’s presentation ‘Ready, Steady, Crook’ and his meetings with other health professionals.

Dr Bratt’s presentations are designed as interactive workshops with medical professionals. The slides are merely a prompt and do not provide the context of the discussions. There are no transcripts of these discussions.

 

Statistics in the presentation ‘Ready, Steady, Crook’

The majority of references which highlight the adverse effects of worklessness are readily available in the Position Paper “Realising the Health Benefits of Work” produced by the Australasian Faculty of Occupational and Environmental Medicine. A further reference list is available in the paper commissioned by the United Kingdom Department of Health and the Department for Work and Pensions by Dame Carol Black entitled “Working for a Healthier Tomorrow”.

The figures showing the likelihood of return to work are from the following papers:

● Campbell Research and Consulting. 2008/09 Australia + New Zealand Return to Work Monitor. Melbourne: The Heads of Workers Compensation Authorities; 2009

● RTW Trends in Australia and New Zealand. Dr Mary Wyatt, 2009 which is publicly available at http://www.rtwmatters.org/publications/all-jurisdictions-rtw-monitor-part-1/

● Johnson D, Fry T “Factors Affecting Return to Work after Injury: A study for the Victorian WorkCover Authority. Melbourne: Melbourne Institute of Applied Economic and Social Research; 2002.

Please find enclosed a copy of the Work and Income Medical Certificate Survey – 2010 and the results of that survey which featured in Dr Bratt’s presentation ‘Ready, Steady, Crook’.

 

Lucy Ratcliffe’s Article

With regards to Dr Bratt’s statement quoted by Lucy Ratcliffe – the figures were taken from a presentation by Sir Mansel Aylward to a representative group of medical professionals from various medical colleges in 2012. The study was independently undertaken by Cardiff University where recipients of a disability-related benefit were interviewed to help identify the key factors that prevented their return to the workforce.

 

Dr Bratt and Other Practitioners

Sir Mansel Aylward was invited to New Zealand by Sir Peter Gluckman, the Chief Science Advisor, to review the ‘Growing Up in New Zealand’ study. In June 2013 Sir Mansel Aylward returned to New Zealand to present his report into the study. During his visit to the Faculty of Occupational and Environmental Medicine Dr Bratt met with him to discuss the extensive work he has been involved with about the adverse health effects of worklessness. At the invitation of the New Zealand Medical Association Sir Mansel Aylward was a keynote speaker at the General Practitioner Conference and Medical Exhibition in Rotorua in June 2013 where he addressed over 900 General Practitioners. Prior and subsequent to this visit, Dr Bratt had numerous email and phone conversations with Sir Mansel Aylward to confirm the travel arrangements and conference details.

Dr David Beaumont is an occupational medicine physician who is the President-Elect of the Australasian Faculty of Occupational and Environmental Medicine. He was co-chair of the group that collated the Position Paper on “Realising the Health Benefits of Work”. Dr Beaumont does not and has never worked at the Ministry. He was part of the external advisory committee representing the various health and disability organisations that the Ministry co-ordinated regarding the Welfare Reform programme. Dr Bratt’s contact with Dr Beaumont was limited to facilitating meetings with Sir Mansel Aylward.

Dr Bratt has not met with or had any correspondence with Professor Gordon Waddell.

The remainder of your request for information is very broad and substantial manual collation would be required to locate and prepare all of the information within scope of your request. As such I refuse the balance of your request under section 18(f) of the Official Information Act. The greater public interest is in the effective and efficient administration of the public service.

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.

I am sorry that I cannot be more helpful on this occasion. 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

 

Debbie Power

Deputy Chief Executive Work and Income”

……………………….

 

Attached to that letter was a 3-page copy of the mentioned ‘Work and Income Medical Certificate Survey – 2010’, with a set of questions and the summary of answers. It is attached to the response from MSD dated 27 Feb. 2014, and the whole response can be viewed and downloaded here:

MSD, O.I.A. rqst, re Dr Bratt, presentations, contacts, anon., 16.01., reply by CE, 27.02.14

 
 

2. MSD’s further response by email, from 12 Nov. 2014 (10:19 am)

 

Following a complaint letter by the O.I.A. requester to the Office of Ombudsmen (from 09 March 2014), which will also be attached to this post, the Ministry did many months later, on 12 Nov. 2014, send a further response by email:

 

“Dear Mr Xxxxxxxxx”

“We refer to your Official Information Act request of 16 January 2014, where you sought detailed information regarding Dr Bratt’s presentation ‘Ready, Steady, Crook’ and his meetings with other health professionals. Further to this request and your subsequent complaint to the Office of the Ombudsman, we are able to provide you with further clarification regarding the questions you believe were not fully answered:

• question one: Whether the information obtained from GPs related to a specified time period? The survey was carried out in 2010 at several large National General Practitioner Organisations’ annual conferences. No time period was specified for responses to apply to. The date, 2010, is on the subject heading of the survey sheet – as already provided

• question three: No response to part c) of the question – the purpose of the survey question was to gauge the extent to which GPs are aware of additional “external” pressures on them when completing Medical Certificates. No in-depth analysis was possible on the basis of a simple self-reported survey sheet. The responding GPs were not asked the questions – they were just handed the survey sheets to complete and return to Dr Bratt if and when they chose to do so

• question four: No clarification of whether the statistical information relates to persons ever returning to any work, or whether the person may never return to the same kind of job or work previously undertaken – it is Dr Bratt’s understanding that the Australian/New Zealand statistics quoted relate to the likelihood of a person having been out of work unintentionally for a period of time ever returning to their original job or a similar one. You have already been supplied with the reference

• question 10: Exact times, dates and types of contacts with the listed professionals were not provided – Dr Bratt does not keep a record of the times, dates, and types of contacts he has had with the listed professionals or anyone else. Dr Bratt’s emails from that period have been deleted. Many contacts were personal to Dr Bratt. Dr Bratt has never had any contact with Professor Waddell

 

We hope you find this information helpful.

 

The Office of the Ombudsman has been forwarded a copy of this email. They will be in touch in due course.

 

Yours sincerely

 

Ombudsman and Privacy Complaint Services

Ministry of Social Development

 

A scan copy of that anonymised response from 12 Nov. 2014 can be viewed by clicking this link here:

MSD, O.I.A. rqst, re Dr Bratt, presentations, contacts, anon., 16.01., further reply, 12.11.14

 
 

E) MSD’s REPEATED RELUCTANCE TO PROVIDE OFFICIAL INFORMATION – AN ANALYSIS AND INTERPRETATION OF RECEIVED INFORMATION

 

When looking at the rather specific, clear requests and questions 1 to 10, that were put to MSD by way of the above O.I.A. request from 16 January 2014, and then looking at the information provided with the responses from MSD on 27 February and also 12 Nov. 2014, the following becomes clear:

MSD chose not to respond at all to a number of questions or requests, MSD only provided some of the asked for information on some other requests, and MSD actually only properly answered a few of the total number of requests. We can say that the response from 27 February 2014 was rather brief, superficial and poor, as it simply ignored many requests, and apart from that provided only limited information in a summarised manner. That was no coincidence, and will rather have been intentional. There appears to have been a reluctance to provide anything of substance that could lead to further follow-up questioning by the requester, or for that sake other members of the public.

 

Requests/questions 2 and 9

 

So MSD appear to have started with first responding in part only to requests 2 and 9 in the O.I.A. – by simply referring the requester to two “papers” that Dr Bratt appears to have primarily relied on when preparing his presentation ‘Ready, Steady, Crook’. These are:

1). “Realising the Health Benefits of Work”, produced by the ‘Australasian Faculty of Occupational and Environmental Medicine’ (AFOEM), largely based on “research” information presented by controversial Professor Mansel Aylward;

2). “Working for a Healthier Tomorrow”, commissioned by the United Kingdom Department of Health and the Department for Work and Pensions – by Dame Carol Black, who has relied on similar research findings as Prof. Aylward.

Both of these “position papers”, containing selected statistical – and also some other research data with their references, are well known to insiders, but they are both significantly influenced by the so often quoted same “experts” like Professor Mansel Aylward and some of his like minded colleagues like Waddell and Burton, with links to the once so called ‘(UNUM Provident) Centre for Psychosocial and Disability Research’ in Cardiff, Wales. Both publications contain numerous references to these and selected other professionals, and must therefore be treated with caution, as to their “independence”. Even Professor Aylward has in recent years repeatedly admitted, that more research is needed to be conducted in the areas he has “researched”, after having faced wide spread criticism in the U.K. and elsewhere. References offered do otherwise represent a list of various statistical and other employment or welfare related reports, with little solid medical scientific value. I will address requests 2 and 9 separately in more detail later in this post.

 

Request/question 4

 

O.I.A. request 4 sought specified information in the form of statistical evidence for claims Dr Bratt made on slide or page 23 of his presentation ‘Ready, Steady, Crook’, which has also appeared in some other presentations. There he stated the following re ‘Worklessness’, sounding rather definitive:

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%

70 days the chance of ever getting back to work is 35%

(On page 22 of the presentation a reference is made to “both Australian and NZ studies”)

There was some information provided to answer request 4, but it is again of very limited usefulness, as all that MSD offered in the first response from 27 Feb. 2014 were three sources of largely statistical information on the likelihood of persons returning to work, based mainly on surveys:

1). Campbell Research and Consulting: ‘2008/09 Australia + New Zealand Return to Work Monitor’; ‘The Heads of Workers Compensation Authorities’; Melbourne, 2009

2). ‘RTW Trends in Australia and New Zealand’; Dr Mary Wyatt, 2009; publicly available at http://www.rtwmatters.org/publications/all-jurisdictions-rtw-monitor-part-1/

3). Johnson D, Fry T “Factors Affecting Return to Work after Injury: A study for the Victorian WorkCover Authority. Melbourne: Melbourne Institute of Applied Economic and Social Research”; 2002.

When examining these “sources” more closely, they represented actually just two, as 1) and 2) above used the same survey data gathered annually by ‘Campbell Research and Consulting’!

The annual Campbell Research and Consulting Australia + New Zealand Return to Work Monitor has been based on annual phone surveys that only covered outcomes and processes reported by sample groups of between a total of about two to three and a half thousand workers involved in workers compensation schemes. It has not included workers with employers that are self insured. Selected persons, who were paid at least 10 days income compensation, were 7 to 9 months after lodging their claims simply being asked a set of questions relating to past or existing work, their individual circumstances and their prospects to return to work, and what could have impacted on this. The survey has not included Western Australia, ignored some types of useful important information, and is therefore hardly all that representative. It did not provide proper medical, scientific information on the direct impact of injuries, sickness and impairments on work ability. The one report quoted only covers a survey for 2008 to 2009. As for data collected for New Zealand showing some differences to that gathered for jurisdictions in Australia, one must consider that there may be different standards for occupational health and safety, and for the application of such for both countries. Also may there be systemic differences in regards to accessible rehabilitation and health care, in income and compensation payment levels, in availability of suitable employment, and of course in economic circumstances, which would all play a role and contribute to some variances in the presented figures. Yet overall, trends and levels for Return to Work (RTW) have been quite similar and mostly stable over time, in both New Zealand and Australia.

An online publication of the mentioned report can be found via this link:

Click to access Australia%20and%20New%20Zealand%20Return%20to%20Work%20Monitor%202008-2009.pdf

As for the information presented in reply to O.I.A. request 4, which was asking for evidence backing the statistics quoted by Dr Bratt in his presentation Ready, Steady, Crook (page 23), a reader of that report will struggle to find such evidence in the mentioned report. It appears that Dr Bratt was re-interpreting selectively chosen data, to suit his agenda to “prove” things, that are not actually backed up by information contained in any of the referred to reports.

Yes, the various sets of statistical data presented in tables and graphs even contradict some of Dr Bratt’s other frequent claims, that are based on other “research” by “experts” like Mansel Aylward, such as that most barriers for persons to return to work are not related to sickness or disability. Roughly half of all persons returning to work claim that they fully recovered from their injuries, and only a marginal percentage mentions “psychological” reasons for not having been able to return to work (see also a table 9 on page 23 and table 10 on page 25 of the above report from 2008-2009).

As for Dr Mary Wyatt, and her reports on the ‘Return To Work Matters’ website, she is herself editor for that website and has authored many publications on it. She is also mentioned as having been chair of the ‘Australasian Faculty of Occupational and Environmental Medicine Policy Committee’ and is a member of the ‘College of Physicians Policy and Advocacy Committee’. As we know, under President Elect Dr David Beaumont, it was the AFOEM itself, which invited Mansel Aylward to present his “findings” to the Faculty, which was the launch of the agenda to influence the New Zealand and Australian medical professional organisations to bring in new UK style medical and work capability assessment approaches. Mary Wyatt did alongside Mansel Aylward attend the launch of the so-called ‘Realising the Health Benefits of Work’ position statement in May 2010. Dr Beaumont was the co-chair of the AFOEM’s ‘Position Statement Working Group’. Again, we see that all the usual, known key promoters of these policies joined their forces to introduce them here in “Down Under”.

While there are claims made that RTW rates have declined over recent years (up to 2009), this appears to be only so for Australia, but not New Zealand, because on the website it says this:

“There has been no material change in the time taken to return to work in New Zealand”

See the website page found via this link for more details, under ‘Executive Summary’:

http://www.rtwmatters.org/publications/all-jurisdictions-rtw-monitor-part-1/

 

Also take note of this information on the same page:

“Claim cost data was provided by Australian jurisdictions only. Claim costs have increased across all jurisdictions, with the average cost of claims at six months up an average of 22%. This ranged from 11% in SA to 37% in Victoria. Information on claims costs was not available for NZ.“

“It should be noted that W.A. does not participate in the Annual Return To Work Monitor survey or report.” “An anomaly with the Victorian data is being investigated.”

 

On the same page, under the heading ‘Background to this publication’, it says this:

“In this series we compare and contrast return to work trends across Australian and New Zealand jurisdictions from 2005-06 to 2008-09.

The RTW Monitor survey has been run each year since the mid 90s, initially in Victoria with other jurisdictions joining the monitor later. The last four years of the Monitor are publicly available via the Heads of Workers Compensation Authorities website and have been used to compare recent jurisdictional trends.

At the outset we need to make clear – one cannot simply compare the results of one jurisdiction to another.”

Under ‘The Return to Work Monitor survey’ we read:

“The Return to Work Monitor is a survey of approximately 2000 injured workers in Australia and New Zealand. The Monitor asks people with work injuries about return to work.

The Monitor interviews employees seven to nine months after they have lodged a claim, where ten days or more compensation has been paid. The survey is completed by phone in November and May each year by Campbell Research & Consulting.

The RTW Monitor is designed to compare return to work outcomes and the processes involved in workers compensation schemes. Injured workers employed by organisations which are self-insured are not included.”

Here is the link to the main page of the site with more info: http://www.rtwmatters.org/

So that website and the relevant information on it are also based on the same report as listed under 1) above, that is by ‘Campbell Research and Consulting’.

As for the quality of the data, and the bold, definitive sounding statements that Dr Bratt makes in his presentations, it shows he is selectively picking statistics to promote his and MSD’s push to bring in firmer work capability assessment criteria and higher work test obligations for sick, injured and impaired. He is quoting and interpreting data out of context and thus misrepresenting the otherwise much more balanced – hardly that worrying – real situation and trends we have. A closer look at the information on RTW Matters reveals, that it does not back many of Dr Bratt’s assertions.

For the spin used see also pages 5 and 6 of the publication ‘RACP news’, Vol. 30, 4 August 2010:

http://www.racp.edu.au/docs/default-source/racp-news/racp-news-august-2010.pdf?sfvrsn=2

 

Only the third mentioned report called “Factors Affecting Return to Work after Injury: A study for the Victorian WorkCover Authority”, from the ‘Melbourne Institute of Applied Economic and Social Research’ (in 2002) appears to contain some basis for the information that Dr Bratt likes to include in his presentations, as was asked for with O.I.A. question 4. A link to that report can be found here:

Click to access wp2002n28.pdf

That rather outdated report is based on a descriptive analysis of data from a sample of records from close to 50,000 claims lodged for workers’ compensation in Victoria between 01 July 1993 and 30 June 1998 (a third of the total). The database used, which is covering circumstances about claims, actually covers a 15 year period. But already on page 3 under ‘1.3 Results’ and ‘Descriptive analysis’ it says in the report, that “the data are very skewed in a number of important respects, with many claims being of very short duration and low cost, and few observations with very long duration and very high cost”.

Under ‘Multi-variate modelling’ it also says: “In none of the above analysis is the independent effect of other claimant characteristics controlled so conclusions about apparent differences between groups may be misleading”.

But using a multi-variate analysis and making a simple comparison of groups of claimants, the authors claim that their research revealed significant independent effects of certain defined classes of variables (e.g. in incidence, duration and cost between industries, by affliction type, incidence type and agents). Under ‘1.5 Discussion’ (on page 4) the publication explains how workers compensation claims behaviour was observed, particularly in regards to incidence, duration and amounts of claims. Some limitations of the research method were again being noted.

 

Under ‘2. Introduction’ (page 5) the report then also concedes:

“However while the focus of the study is return to work it should be noted that return to work is not observed directly in the data. What is ob served is that claimants no longer receive weekly payments. It is surmised that, for those of workforce age, going off benefit is tantamount to return to work. However there are other possibilities”.

Nevertheless, the report appears to have some scientific value, like it is the case with many research reports of this type having some quality issues, but otherwise at least some useful information to provide. By looking at a table ‘3.2 Summary statistics, WorkCover sample, means and medians’ on page 12, we see information that may raise some questions, but significant variations between mean and median time off work, and other aspects are logically explained. Despite of the marked difference for time off work between females and males, most of the other data is hardly extraordinary. Mean time lost off work and paid by WorkCover is 96 days for females and 64 days for males. Data provided on page 14 a table ‘3.5 Weekly compensation payments by affliction’ is with the shown variations also not that surprising.

The report does for the rest present a large number of graphic and tabled statistical presentations, as well as some formulae for calculating incidence, durations, costs, and so forth of workers’ compensation payments, which do generally appear to tell us what most will already have presumed or known from anecdotal reporting. Nothing appears to be all that much out of the ordinary. Such facts like the severity of a condition or injury being a strong indicator for the likely length of a claim is hardly surprising. As only a small percentage of workers will be affected by serious injury, the fact that they are likely to depend on claims payments for longer periods, and are therefore less likely to return to their former employment, is simply normal and to be expected. And while the costs per capita will be high for instance for some serious injuries, this has to be viewed in the context of the vast majority of the claimants not being that seriously injured and out of work for shorter periods.

Having gone over that partly mathematically complex analysis and report, I have not found any direct mention of the statistical data Dr Bratt has used on page 23 in ‘Ready, Steady, Crook’, so I must presume he and others have extrapolated figures from data sets in this report. This will most likely have been done from the various graphs showing so-called “survivor functions” for certain conditions and other impacting factors or circumstances. The way the information is used in Dr Bratt’s presentations is extremely misleading. The vast majority of people do eventually return to work, and only a small percentage of injured and impaired persons will not return to work for longer periods. What Dr Bratt and MSD have done, is to confuse – or intentionally mix up – cause and effect, ignoring the fact that only a tiny percentage of injured, same as seriously sick and impaired persons, will never return to their previous or even other work. The systems and supports that are in place do already ensure that most people do minimise their time off work, and are encouraged to return to employment.

And only upon the Ombudsman complaint from early March 2014 did MSD provide some further information in response to the O.I.A. request number on 12 November 2014. It did then contain the following comments:

“it is Dr Bratt’s understanding that the Australian/New Zealand statistics quoted relate to the likelihood of a person having been out of work unintentionally for a period of time ever returning to their original job or a similar one.”

That did most certainly qualify the earlier provided information, and put a totally new meaning on the rather blunt, misleading claims made in ‘Ready, Steady, Crook’. Also should we ask the valid question, how relevant are RTW figures for workers suffering injuries due to accidents, as that is just one group of people that may face impairments and disabilities necessitating time off work and workers’ compensation or other social security support. How relevant is this kind of research for persons having congenital health conditions, having permanent physical or mental sickness or impairments, leading to disability? I dare say that the research referred to above may not be all that relevant at all, same as it may not be that relevant for healthy persons who are unemployed. Hence the references provided by MSD, to provide supposed “evidence” for Dr Bratt’s claims, lack credibility.

 

Requests/questions 1 and 3

 

The information that MSD provided in reply to O.I.A. requests 1 and 3 did at first consist only of a copy of a survey form with response data on it, which was gathered from general practitioners attending some conferences. Initially it was in the letter from 27 February 2014 simply referred to as: “Please find enclosed a copy of the Work and Income Medical Certificate Survey – 2010 and the results of that survey which featured in Dr Bratt’s presentation ‘Ready, Steady, Crook’”.

You can find the authentic copy of that form at the end of the first O.I.A. response by MSD from 27 Feb. 2014, which is contained in the attached PDF file, also found via this link:

MSD, O.I.A. rqst, re Dr Bratt, presentations, contacts, anon., 16.01., reply by CE, 27.02.14

 

For those not aware of what the information on page 32 of Dr Bratt’s presentation ‘Ready, Steady, Crook’ is, here are the claims he makes there about findings from a ‘GP Survey’:

Sources of pressure felt by GPs

71% felt this was the mechanism to provide income to the patient

55% – felt W+I staff created an expectation

40% – because they believed there was no work available

31% – felt W+I weren’t doing anything for the patient

30% – had experienced a sense of threat and intimidation

Again, MSD provided that form, without offering any explanations for the contents of that form, and without properly answering questions in O.I.A. requests 1 and 3. Only upon the complaint to the Office of the Ombudsmen (dated 09 March 2014) did MSD deliver the following additional explanations in their further response from 12 Nov. 2014:

MSD, O.I.A. rqst, re Dr Bratt, presentations, contacts, anon., 16.01., further reply, 12.11.14

 

Re question one: “Whether the information obtained from GPs related to a specified time period? “

Comments by MSD: The survey was carried out in 2010 at several large National General Practitioner Organisations’ annual conferences. No time period was specified for responses to apply to. The date, 2010, is on the subject heading of the survey sheet – as already provided”

Re question three: “No response to part c) of the question”

Comments by MSD: “the purpose of the survey question was to gauge the extent to which GPs are aware of additional “external” pressures on them when completing Medical Certificates. No in-depth analysis was possible on the basis of a simple self-reported survey sheet. The responding GPs were not asked the questions – they were just handed the survey sheets to complete and return to Dr Bratt if and when they chose to do so

So while Dr Bratt quotes his so-called “GP survey” results like some convincing “evidence” in his presentations, such as Ready, Steady, Crook (see pages 31 to 33) or Medical Certificates are Clinical Instruments Too (see page 29), this is far from the truth. That very “survey” he conducted, lacked any proper statistical methodology and validity, as it was not conducted in an appropriate scientific manner. It was merely a random “survey” based on questionnaires he handed out, and which he only partly got back. From the returned questionnaires, which were also not all fully completed, he extracted the figures that he considered of use, to promote his agenda of trying to convince medical and other health professionals, same as other target groups, to adopt the approaches he favours for getting sick, injured and disabled into “suitable” forms of work. It was apparently an attempt to generate an impression, that GPs face some unreasonable “pressures” or expectations from patients, seeking medical certificates to claim benefits.

 

Further to request/question 2

 

As for O.I.A. request 2, MSD have shied away from offering any proper response to the questions asked in it. NO confirmations was given, and no medical scientific evidence was delivered to prove that “the benefit” is “addictive” like a “drug”, or that any of the other bizarre claims made in Dr Bratt’s presentations have any validity. Let us remember that Dr Bratt has repeatedly claimed that “Long term unemployment has been shown as bad as smoking 10 packets of cigarettes daily”. He has also asserted: “As a drug, it would be an addictive, debilitating substance, he told the RNZCGP education convention” (see question 2 in the O.I.A. request from 16 Jan. 2014). Up to this day, MSD have given no proper response to that request. Not even the complaint to the Ombudsman resulted in any further information, even though it was pointed out, that neither the position paper by the ‘Australasian Faculty of Occupational and Environmental Medicine’ (AFOEM), called “Realising the Health Benefits of Work”, nor the UK paper titled “Working for a Healthier Tomorrow”, by Dame Carol Black, does deliver evidence to support Dr Bratt’s bold quotes or comments.

The Ombudsman did not bother to press MSD for a clear answer, but concluded in his provisional decision, that from their earlier comments, it must be presumed that MSD agree with Dr Bratt. In a “provisional opinion” on the O.I.A. requester’s complaint, Ron Paterson wrote on 22 May 2015:

In response, the Ministry has provided the following additional information:

Question 2In relation whether MSD agrees with Dr Bratt, the answer is yes, and the links, including the five references, were provided. While MSD did not specifically state that it agreed with Dr Bratt, it can be implied from providing the references.” “The Ministry does not hold this information and has no further comment to make.

This is an astonishing comment. Indeed, the Ministry appears to have been forced to concede that it “agrees” with Dr Bratt’s comments and position, being his employer, it would possibly have to dismiss him, should it disagree with him now, having allowed him to make bizarre, misleading claims in his presentations. But of course MSD will not comment on this publicly.

 

Request/question 5

 

O.I.A. request 5 referred to a ‘NZ Doctor’ publication from 01 August 2012 (article by Lucy Ratcliffe), where Dr Bratt was quoted as saying: “A UK study found of the main obstacles for going to work, medical problems made up just 3 % of the list”. So the source of the supposed evidence was asked for, but again, NO proper response was provided by MSD. All that MSD provided in their response from 27 Feb. 2014 was the following: “With regards to Dr Bratt’s statement quoted by Lucy Ratcliffe – the figures were taken from a presentation by Sir Mansel Aylward to a representative group of medical professionals from various medical colleges in 2012. The study was independently undertaken by Cardiff University where recipients of a disability-related benefit were interviewed to help identify the key factors that prevented their return to the workforce.

So again, we are merely talking about a kind of “survey”, or number of “interviews”, to gather data.

After the dissatisfaction with MSD’s unclear response, mentioning no source by name, date and author, the requester followed up the initial complaint to the Ombudsman, the following information from MSD was provided by Ron Paterson in his “provisional opinion”:

“Question 5 – Mr ……….. has previously been provided with Dr Bratt’s research sources. The Ministry holds no additional information about the Cardiff University study.”

Again the requester and readers here are left without any proper response, as the particular study is not named by title, by author or date. The only reference being made to a “study”, which though appears to be nothing else but a form of series of interviews of persons affected with disabilities, does not give us the opportunity to properly examine and assess it. NO information about the quality and scientific solidity of the research or results is presented; hence I would not give much credit at all to the claims made by Dr Bratt, supposedly supported by the mentioned, unknown “Cardiff University study”.

 

Requests/questions 6, 7 and 8

 

There was NO real information at all provided by MSD in response to O.I.A. requests 6, 7 and 8, neither in the letter from Deputy Chief Executive Debbie Power dated 27 February 2014, nor in the additional response by email (from an unnamed MSD staff member) dated 12 Nov. 2014. Hence the requester made an attempt to ask the Ombudsman by way of a further letter from early December 2014, to seek from MSD at least some samples of the information in response to requests 6, 7 and 8, as not ALL such information was expected.

Under request 6 the request was for information that Dr Bratt may have on harms that exist at workplaces, about certain harms caused by work, about certain types of work causing ill health or injury, and about insufficiently equipped and organised work places, or particular work practices, work duration, or any other aspects relating to work or employment, that may be causing harms to health and safety of workers. Under request 7 the request was for information Dr Bratt may have about the negative and harmful health effects from relative or general poverty, instead of simple “worklessness”, that people on benefits or in low paid work may face. And lastly under request 8, the request was for information on whether the quality of health of a beneficiary, who suffers from sickness, illness, physical or mental impairment and disability, may rather much more depend on individual circumstances, and that some simple forms of physical activity or mental activity, other than work in the form of “open employment”, may rather be beneficial for people.

Regrettably the Ombudsman was not able or willing to obtain further information from MSD on these matters, and in his “provisional opinion” from 22 May 2015 he quoted MSD with this:

“Questions 6, 7, 8 and 9 – In relation to question 6, Mr …………… also has copies of other Dr Bratt presentations, and they are publicly available. Mr ……………. was also given the overarching links to papers and the substance of the statistics which informed Dr Bratt’s papers. Most of the rest falls under section 18 (f).” “The information in relation to Questions 7 and 8 is not held.” “In response to the request for other examples of the references requested in Questions 6 to 9, and whether Dr Bratt can estimate the percentage of research from the Centre, the Ministry stated that the information is not readily accessible.”

This response by MSD, passed on through the Ombudsman, is nothing much as a typical O.I.A. “cop out”, as it suggests that Dr Bratt and MSD simply cannot bother making any effort to present at least some samples of the information sought, that is at least to provide information on requests 6 and also 9. But it has at least become clear, that Dr Bratt, and with that also MSD, do NOT hold any of the information requested under points 7 and 8. That proves, that his focus is ONLY on stressing any perceived and hypothetical harm that may be caused through “worklessness”. We know the reasons and motivations behind this. Dr Bratt appears to take no real interest in the harm that may be caused to health through poverty. He does also seem to have little interest in the possibility, that some health benefits may rather be achieved for individual’s suffering illness, sickness, physical and mental impairments causing disability, by engaging them in other activities than paid open employment. Dr Bratt seems to rather only focus on supposed “health benefits” that he believes come with paid work, than through an individual’s other physical or mental activities, that may be limited, and that may well prohibit demanding, stressful and strictly regulated paid employment on the competitive job market.

That proves again, that the drive to get people off benefits and into work is primarily motivated by achieving cost savings for MSD and Work and Income, and by getting beneficiary numbers down. There is no alternative offered to paid work, it seems, while many if not most impaired and disabled persons may rather be better placed in special, subsidised employment, or other health promoting activities, that could enhance their lives and offer them a lifestyle and security that better suits them.

 

Further to request/question 9

 

Re request 9 the Ombudsman has already commented above, what MSD’s position is re the information sought under it. A further request letter to the Ombudsman from early December 2014, emphasized that it would suffice if MSD provides a list of the research resources Dr Bratt used for his presentations. By mentioning the author of such, it would be sufficient to establish, from whom he sourced such information, the requester wrote. The requester also expressed the following concerns:

“As for my request under point 9 MSD have only provided a short list of 3 sources for sources and reports that provide or back up information Dr Bratt used in the mentioned two presentations. These reports at the bottom of their response from 27 February are all about “return to work” statistics, and how they are being interpreted, and about nothing else. They do not deliver medical scientific proof that I asked for, for instance for Dr Bratt’s claims about the alleged harmful effects of benefit dependence, and the benefit being like “an addictive debilitating drug with significant adverse effects to both the patient and their family (whanau) – not dissimilar to smoking”. He also claims “Long term unemployment has been shown as bad as smoking 10 packets of cigarettes daily”. Dr Bratt told a NZ Royal College of General Practitioners education convention that the benefit is, “as a drug, it would be an addictive, debilitating substance…”. (see also my request 2).”

“I have information that Dr Bratt has been relying a lot on information delivered by the so-called ‘Centre for Psychosocial and Disability Research’ run for years by Professor Mansel Aylward, with whom he has also had regular personal and professional contacts. It is clear that Dr Bratt has used resources that were prepared and written by Mansel Aylward, also Gordon Waddell and Kim Burton, all being directly or indirectly linked to the said “research centre”, as part of Cardiff University, and to other research that follows similar theories about “worklessness” and causes for poor health and for disability. Mansel Aylward has basically presented studies based on comparing statistical data, and he drew his conclusions from the information, which does though deliver anything but conclusive evidence about the causal effects of unemployment on health, resulting in sickness and disability, of which many people dependent on health related benefits may suffer. While there may be some form of correlation or association between unemployment and poor health, this does not mean that one circumstance or condition is the cause of the other. It is significant to note that the same centre where Mansel Aylward has for many years served as a director used to be sponsored by a controversial insurance corporation called UNUM, who also cooperated with him as an “advisor” on welfare reforms in the UK, when Aylward was Chief Medical Officer for the Department of Work and Pensions (DWP) in the UK. Such “sponsoring” by a vested interest party, that then also launched new health and disability insurance products on the UK market, while welfare reforms tightened entitlement criteria for many sick and disabled there, should be of major concern. The fact that Mr Aylward went onto the payroll of the same company raises many questions, also about his “research”, and the quality of it.”

The above stated concerns may have alerted MSD and Dr Bratt, to not enter any correspondence on this sensitive area, as some of the issues raised have also led to intensive debate about the controversial ‘Center for Psychosocial and Disability Research’, which has recently been renamed yet again, after it had already the former sponsor’s name ‘Unum Provident’ taken out of it. MSD seem very reluctant to discuss any concerns, or to provide any information that Dr Bratt appears to have relied on, and I will leave it up to the reader to make her or his own conclusions about the reasons behind all this. Any informed and intelligent enough person can draw their own logical conclusions.

 

Request/question 10

 

As for request 10 there was initially only a briefly summarised, rather disappointing response given by MSD in the first letter from 27 Feb. 2014. Instead of providing any of the more detailed sought information, a brief overview of contacts Dr Bratt had (or did not have) with the named “experts” was given by MSD, being Prof. Aylward, Dr Waddell and Dr Beaumont. Rather than providing detailed information on the times, dates, types of and purposes of contacts, meetings and communications (including correspondence) that Dr Bratt had with these professionals, the following general explanation was given:

“In June 2013 Sir Mansel Aylward returned to New Zealand to present his report into the study. During his visit to the Faculty of Occupational and Environmental Medicine Dr Bratt met with him to discuss the extensive work he has been involved with about the adverse health effects of worklessness. At the invitation of the New Zealand Medical Association Sir Mansel Aylward was a keynote speaker at the General Practitioner Conference and Medical Exhibition in Rotorua in June 2013 where he addressed over 900General Practitioners. Prior and subsequent to this visit, Dr Bratt had numerous email and phone conversations with Sir Mansel Aylward to confirm the travel arrangements and conference details.

Dr David Beaumont is an occupational medicine physician who is the President-Elect of the Australasian Faculty of Occupational and Environmental Medicine. He was co-chair of the group that collated the Position Paper on “Realising the Health Benefits of Work”. Dr Beaumont does not and has never worked at the Ministry. He was part of the external advisory committee representing the various health and disability organisations that the Ministry co-ordinated regarding the Welfare Reform programme. Dr Bratt’s contact with Dr Beaumont was limited to facilitating meetings with Sir Mansel Aylward.

Dr Bratt has not met with or had any correspondence with Professor Gordon Waddell.”

Upon a complaint to the Ombudsman, the following further information was provided by MSD, sent by an unnamed staff member by email on 12 November 2014:

Dr Bratt does not keep a record of the times, dates, and types of contacts he has had with the listed professionals or anyone else. Dr Bratt’s emails from that period have been deleted. Many contacts were personal to Dr Bratt. Dr Bratt has never had any contact with Professor Waddell”

As both received responses were considered very unsatisfactory by the O.I.A. information requester, the requester sent yet another letter to the Ombudsman on 03 December 2014 expressing concerns about the lack of available information, the deletion of emails, and contradiction in MSD’s statements.

The requester explained the involvement of Mansel Aylward and Dr Beaumont in consultations for the formation of major welfare reforms in 2012/13, and how they advised a MSD appointed ‘Health and Disability Panel’ on health and work capability assessment matters. He stated that Mr Aylward was repeatedly mentioned by the then Minister Paula Bennett as an advisor they used during the reform process. It would be beyond belief that no records were kept by Dr Bratt on his contacts with both professionals, the requester wrote. Also did the complainant express concerns about Dr Bratt mixing private with official contacts and activities. Mention was made of Dr Bratt’s visit to the UK in early 2014, where he again met and consulted with Prof. Aylward, in his capacity as Principal Health Advisor. This showed there had been a close professional cooperation between the two, the requester asserted. The requester also referred to information used in Dr Bratt’s presentations and his repeated comments to media, which indicated he had contact with Mr Aylward for at least two years, and used information from the ‘Centre’ headed by Prof. Aylward in Cardiff. It was evident that Dr Bratt was acting in his professional capacity and would have had to keep certain records of his contacts and correspondence with Drs Aylward and Beaumont, the requester wrote. Dr Beaumont’s former employment at ATOS in the UK was mentioned, same as how controversial work capability assessments in the UK were conducted by that firm. Dr Aylward’s involvement as former Chief Medical Officer of the DWP in the UK was mentioned, and evidence was presented to the Ombudsman on contacts and cooperation between Drs Bratt and Aylward.

 

The O.I.A. information requester furthermore wrote to the Ombudsman:

“I suggest you insist on MSD providing the information that has so far not been delivered, that has been withheld under section 18 (f) under the Official Information Act, and that has otherwise been delivered short of what my initial request sought. It is in my view a somewhat questionable justification, and indeed very worrying, that MSD simply states Dr Bratt deleted all records of his contacts and emails.

 

Regrettably the Ombudsman did not appear to make much in the way of further efforts to obtain further information from MSD, but at least sought some further comments in relation to request 10. In his “provisional opinion” letter from 22 May 2015 Ron Paterson had this to write:

Your complaint

You complained to this Office about the Ministry’s decision on the request. In particular, you raised concerns about the refusal of much of the information sought under section 18(f), stating that the response you received was unsatisfactory because it did not completely answer your questions, including questions 1, 3, 4 and 10.

You also commented that it is reasonable to expect the Ministry, as an “organised government agency”, to locate and release the specified information without too much time and effort being required, and it is in the public interest that the Ministry does so.

Comments by the Ministry

In its report to me, the Ministry advised that your request asked a number of broad questions concerning information that was not centrally held. The Ministry stated that attempting to collate the information from over 100 sources would be a time consuming exercise. However, the Ministry informed me that you have been provided with links and references to the research sources requested. The Ministry confirmed that the information sources are highly respected academics whose papers are publically available.

In order for the Ministry to centrally collate the papers and documents as well as the sources already provided into a single document, it would require a significant amount of time from Dr Bratt – approximately two weeks. The Ministry advised that diverting Dr Bratt away from his role as Principal Health Advisor for this length of time would have a serious and prejudicial impact on the Ministry’s ability to carry out its functions.

However, the Ministry agreed that additional information could be provided to you about questions 1, 3, 4 and 10, and it did so on 12 November 2014. On 03 December 2014 you confirmed that you remained dissatisfied and considered that the Ministry had still not provided an appropriate reply. Y ou detailed the particular information that you still wished to obtain. A copy of this was provided to the Ministry and it was asked to provide further comments. In response, the Ministry has provided the following additional information:”

(Note: See further above, the already quoted further information provided to questions 1, 3 and 4!)

 

The Ombudsman Ron Paterson did in his “provisional opinion” add the further comments he received from MSD as response by them to request 10:

Question 10Dr Bratt only deleted emails which were personal in nature and did not relate to official engagements in his capacity as Principal Health Advisor.

“In relation to question 10, the Ministry provided me with a copy of its guidance relating to the retention of records, including emails, which is issued to staff and is available on the Ministry’s intranet. I have asked the Ministry to send you a copy of the guidance also.”

Ron Paterson did not have anything else to comment on the O.I.A. requester’s concerns about Dr Bratt’s deletion of emails (as stated by MSD), or about any legal issues that may have arisen in relation to O.I.A. request 10. For the remainder of his “provisional opinion” he wrote about the provisions in the O.I.A. allowing MSD to withhold or not provide information sought. In his response in his letter with his “provisional opinion” from 22 May 2015 Professor Paterson wrote further down in his letter to the requester:

“I am satisfied that the remaining information that is withheld by the Ministry in relation to your request is not centrally located. There seems little doubt that responding in full to your request would involve substantial collation and research, particularly by Dr Bratt. In addition, the estimated time of two weeks that Dr Bratt would be diverted from his role to do this work would undoubtedly negatively affect the Ministry’s day-to-day operations.

 

In the end of the letter Ron Paterson summarises under ‘My provisional opinion’:

“In my provisional opinion, for the reasons set out above, the Ministry was entitled to refuse part of your request for information relating to Dr Bratt’s presentations under sections 18(f) and 18(g) of the OIA.”

Being understandably very disappointed by the provisional opinion of the Ombudsman, the requester made a final attempt to request Professor Paterson to further investigate the matters raised, and to seek further clarifications from MSD. This was done by way of a letter dated 13 June 2015. Regrettably the Ombudsman did push aside numerous points of serious concern, and dismissed sufficient clear, also documented evidence that justified a formal investigation, and he did with his final decision more or less confirm his “provisional opinion”, which was stated in a rather short letter from 23 June 2015. He even used references to a letter from the Chief Archivist, who had also been consulted on Dr Bratt’s failings, to justify taking no action. But the Chief Archivist had herself ignored relevant evidence, and simply trusted comments by MSD, made in the first O.I.A. response from 27 Feb. 2014, even though comments by Debbie Power were later contradicted in two further responses from MSD.

Ron Paterson wrote in his final decision on 23 June 2015:

“I have now had an opportunity to consider your comments on my provisional opinion. However, having considered all the issues raised, I remain of the view that the Ministry was entitled to refuse part of your request, on the basis that some of the information is not held, and the remaining information would involve substantial collation and research.

I note that Archives New Zealand has looked into your concerns about the issue of Dr Bratt’s record keeping and is unable to provide any further assistance. In any event, my investigation is limited to the information actually held by the Ministry at the time of your request. Without access to the information in question, it is not possible to assess the content of those communications.

Overall, it seems that your concerns stem from your disagreement with Dr Bratt’s and the Ministry’s policies in relation to sickness beneficiaries, and the basis for that policy. It is open to you to raise your concerns about those policies with the Chief Executive of the Ministry, and/or your local Member of Parliament. The Ombudsmen have no authority to investigate matters of government policy. I have now concluded my investigation.”

 

The above summary of the correspondence covering concerns and outcomes relating to O.I.A. request or question 10 shows us, that MSD have not only been totally reluctant to provide detailed information about the contacts and correspondence Dr Bratt had with both Prof. Mansel Aylward and Dr David Beaumont (now President of the AFOEM), but that MSD have even done everything possible to cover Dr Bratt from being held to account for not keeping public records, which he should strictly have been required to keep under the Public Records Act 2005. Also has the Ombudsman, Professor Ron Paterson, been very reluctant to further investigate this matter.

 

Please find here the letters to and from the Ombudsman in PDF file format:

Ombudsman, complaint, O.I.A. to MSD, public interest, re Dr Bratt, anon., xx.03.2014

Ombudsman, complaint, MSD, O.I.A. rqst. 16.01.14, Dr Bratt, presentation info, ltr, xx.12.14

Ombudsman, complaint, O.I.A. to MSD, Dr Bratt, publ. int., prov. dec., compl., hilit, 22.05.15

Ombudsman, complaint, 3xxxxx, MSD, O.I.A. fr. 16.01.14, Bratt, presentations, anon, ltr, 13.06.15

Ombudsman, complaint, MSD, O.I.A. rqst. 16.01.14, Dr Bratt, presentation info, hilit dec., 23.06.15

 

 

F) A NEW ISSUE WITH DR DAVID BRATT’S DELETION OF ALL EMAIL CORRESPONDENCE

 

As a result of the O.I.A. request 10 made as part of the wider O.I.A. request to MSD from 16 Jan. 2014, there have been three different comments or statements by MSD in relation to Dr Bratt’s contacts with two of three initially mentioned senior professionals, being Professor Mansel Aylward from the former ‘Centre for Psychosocial and Disability Research’ in Cardiff, Wales, and Dr David Beaumont, now President of the AFOEM, who has in the past also run his own rehabilitation business called “Pathways to Work”, based in Otago. Of particular significance are the various responses by MSD relating to the contacts and correspondence between Dr Bratt and Prof. Aylward.

In the first response from 27 February 2014 Debbie Power did in her letter state the following:

“At the invitation of the New Zealand Medical Association Sir Mansel Aylward was a keynote speaker at the General Practitioner Conference and Medical Exhibition in Rotorua in June 2013 where he addressed over 900 medical practitioners. Prior and subsequent to this visit, Dr Bratt had numerous email and phone conversations with Sir Mansel Aylward to confirm the travel arrangements and conference details.

 

The O.I.A. requester then wrote to the Ombudsman on 09 March 2014:

Re question 10. MSD have only provided a general summary of ‘Dr Bratt and Other Practitioners’, and not disclosed the exact times, dates and types of contacts Dr Bratt had with the listed professionals – like Professor Aylward and Dr Beaumont. I accept that he never had contact with Professor Waddell. While I do not expect every single email or phone call being listed, it must be reasonably expected from MSD to provide the information I sought, by listing times or at least dates, and a frequency of phone calls or emails sent on certain days. I would certainly expect dates for face to face conversations and meetings to be provided, for the whole period of Dr Bratt’s employment as Principal Health Advisor for MSD and Work and Income.

The requester asked the Ombudsman that the following action be taken:

“Given the unsatisfactory responses received, I ask you at the Office of the Ombudsmen to examine and assess the O.I.A. request and questions I sent (on 16 Jan. 2014), and to do the same with the responses I received from Debbie Power at MSD (on 27 Feb. 2014), and to then take the necessary action by approaching the Ministry of Social Development, in order to instruct them to provide the information that I should reasonably be able to expect and receive in this matter.”

“In view of the fact that we are talking about rather serious matters, where a Principal Health Advisor for MSD is making in part controversial and disputed comments and claims in presentations that he gives to professional medical organisations and other groups, I trust that you will give my request in this matter serious considerations.”

On 12 November 2014 the requester received some further information and explanations from MSD by way of an email, which showed no name or other identification of the author underneath it:

..question 10: Dr Bratt does not keep a record of the times, dates and types of contacts he has had with the listed professionals or anyone else. Dr Bratt’s emails from that period have been deleted. Many contacts were personal to Dr Bratt. Dr Bratt has never had any contact with Professor Waddell.

The response was “signed” only with: “Ombudsman and Privacy Complaint Services Ministry of Social Development”, and provided only limited additional information to other requests that had been made.

In a new letter from 03 Dec. 2014 to the Ombudsman’s Office the O.I.A. requester expressed his concerns about the further response received from MSD, and under Para [5] wrote:

“[5] The additional information offered in response to my original question 10 does though not help me in any way at all. I do actually find the comments made by MSD somewhat bizarre and astonishing, to say the least, and they are in my view unacceptable. To simply state that “Dr Bratt does not keep a record of the times, dates, and types of contacts he has had with the listed professionals or anyone else”, does not sound credible to me. I am surprised to read MSD’s comment “Dr Bratt’s emails from that period have been deleted. Many contacts were personal to Dr Bratt.” “

Under Para [17] the requester also wrote:

“I do not accept the answer that MSD give in both responses about Dr Bratt’s contacts with professionals like Professor Mansel Aylward and Dr David Beaumont, who were senior official advisors that were substantially involved in the consultation and formation process for the last major, controversial welfare reforms in 2012/13. MSD and then Minister Paula Bennett sought their advice on how persons on health related benefits should be treated and “assisted” when assessing them and trying to place them into work. It is beyond belief, that NO records were kept in a professional form and manner by Dr Bratt as a senior official in a senior advisory role for the Ministry of Social Development. He will certainly have kept comprehensive information on his contacts and in relation to organising the visits and meetings involving those two well known professionals. It is furthermore beyond belief, that Dr David Bratt was allowed to mix his private and official correspondence while performing his responsibilities as Principal Health Advisor for MSD. I do not believe that Dr Bratt was entitled to simply delete ALL his email correspondence and contacts that covered activities with the mentioned professionals.”

Some further concerns were expressed, which have partly already been mentioned further above in earlier sections in this post. Then in his “provisional opinion” Ombudsman Paterson wrote on 22 May 2015, that MSD had provided some additional information to ‘Question 10’. He quoted MSD with:

“Question 10 – Dr Bratt only deleted emails which were personal in nature and did not relate to official engagements in his capacity as Principal Health Advisor.”

“In relation to question 10, the Ministry provided me with a copy of its guidance relating to the retention of records, including emails, which is issued to staff and is available on the Ministry’s intranet. I have asked the Ministry to send you a copy of this guidance also.

Given the inconsistencies in the responses given by MSD, the requester did raise further concerns in a letter to the Ombudsman on 13 June 2015:

“In view of those three comments I must ask, what is the truth then? All comments are somewhat contradictory, and somehow in conflict with each other, and this does leave me in a situation, where I get the impression that the Ministry is unsure of the truth. Dr Bratt was clearly corresponding with Professor Mansel Aylward in his professional capacity as Principal Health Advisor, not just on “personal” or “private” terms, as he was arranging and checking travel and booking arrangements for Mr Aylward to attend meetings with him and at conferences here in New Zealand. Mr Aylward can therefore not have been a “personal” contact. It is also bizarre, that in the further response from 12 November a claim is suddenly made, that Dr Bratt keeps no records of times, dates, types and contacts he has had with said professional(s), or anyone else. It remains to be my view that as Principal Health Advisor for MSD Dr Bratt was and is required to keep certain records about his correspondence and contacts, and I assert that these were not limited to arrange travel and conference attendance. Professor Aylward was also quoted as advisor on welfare reform, and his input had been sought for formulating new welfare policy as part of substantial reforms, which started to be implemented from mid July 2013. And re the comments by Ms Power in the letter from 27 February 2014, fair questions must be asked, what were the subsequent email and phone contacts about, when Dr Bratt was meant to correspond only about confirming travel arrangements and conference details? Once those events had taken place, one would have thought there was no further correspondence needed for that purpose. I presented you evidence of Dr Bratt and Dr Mansel Aylward making joint presentations and participating in media interviews together, and Dr Bratt did so as Principal Health Advisor for MSD. This can hardly be described as contacts only of a “personal” or “private” nature! Even MSD’s response from 12 November 2014 concedes that “many” contacts were “personal”, but that also means not all. The information in your letter from 22 Mai implies there were some emails kept. So not all emails from the referred to period can have been deleted after all.”

The requester went further in Paras [15] and [16] of his letter and explained other efforts he had made, and issues that remained:

“[15] I can inform you that the same issue was raised with the Chief Archivist Marilyn Little, and I will attach correspondence in that matter to this letter, which I will also send to you by email. One of her response letters was dated xx March 2015, and on that same day she wrote to Mr Brendan Boyle, also providing the Ministry with the applicable General Disposal Authorities (GDA) for records management and maintenance in the public service. I presume I have not received the guidance you mention in your letter from MSD, as they seem to assume, that I have them already. A second letter from Marilyn Little is dated xx April this year, and regrettably sees no reason to further investigate the contradictions I observed in comments received from MSD in this matter. I strongly suggest your Office of Ombudsmen looks into this, as there are so many conflicting claims and comments on record now, none of them appear to reveal the whole truth about what records Dr Bratt kept of his communications and correspondence with Professor Mansel Aylward and with Dr David Beaumont. I strongly suggest you consult with the Chief Archivist at Archives New Zealand about what action to take, to establish what has really gone on at Dr Bratt’s Office. I remind you of information I sent you by way of reference material and attachments with my letter from 03 December 2014, showing how much Mansel Aylward was involved in consulting with MSD and the government on welfare reforms. He did not just visit New Zealand to play golf with Dr Bratt, or to “entertain” himself and others by holding a couple of brief speeches at GP conferences, followed by mostly private contacts of whatever types of lesser relevance. Paula Bennett heavily relied on him and his advice to the Health and Disability Panel set up to consult on welfare reform matters in her ‘Speech to Medical Professionals’ on 26 September 2012. Therefore Mansel Aylward was involved in assisting policy formation by the government!”

“[16] In my original O.I.A. request from 16 January 2014 I did not ask for mere scheduling or diary type details about Dr Bratt’s contacts with Professor Mansel Aylward and other named professionals. I asked for “information on the times, dates, types of and purposes of contacts, meetings and communications (including correspondence)”. Nowhere did I talk about ordinary scheduling details for bookings for travel and the likes. I expected information about when Dr Bratt had meetings with Mansel Aylward and Dr Beaumont, and about when and how they corresponded about particular matters (purposes) involving their professional roles and activities. The fact that Dr Bratt and Mansel Aylward prepared and gave joint presentations to GP conferences and the likes, that they jointly faced up to a ‘NZ Doctor’ journalist to answer questions about their work, and that they professionally worked together in other ways, and early last year also met in their professional capacities in the UK and Europe, that proves that contacts and correspondence were not just “personal” and “private”, and that the details I asked for should have been presented in relation to such activities. Details about these activities will have been recorded, and should hence be available. Again, I fear that MSD is taking advantage of provisions in the O.I.A. to avoid more transparency in these matters.” “

At the end of Para [18] he then wrote:

Most certainly I seek the information I asked for under ‘Question 10’, as I explained above, the Ministry has provided 3 different, somewhat contradictory comments to it, and has refused to deliver any significant information, at one time claiming all emails and contacts were deleted by Dr Bratt. I request your Office takes actions in this matter, to conduct an investigation into the conflicting explanations that have been provided by the Ministry, as some records should have been kept on Dr Bratt’s professional meetings and correspondence with Professor Aylward, perhaps lesser so with Dr David Beaumont. Professor Dr Aylward acted as advisor on welfare reform policy to MSD. As you mention yourself in your letter from 22 May, not all emails appear to have been deleted after all, as he only deleted those that were “personal in nature”.

As we read under Chapter E) above (towards the end), the Ombudsman strangely saw no need to further investigate the matter of Dr Bratt deleting emails for a whole period, even though serious concerns and evidence were presented to him. This does though remain to be a matter of huge concern as it may involve serious breaches of the Public Records Act, because so-called ‘General Disposal Authorities’ issued by the Chief Archivist appear to have been breached. We are informed the matter has again been raised again with the Office of Ombudsmen, now with the Chief Ombudsman, and a final decision on a new complaint will need to be awaited and analysed in due time.

 
 

G) FINAL CONCLUSIONS

 

Having read all the correspondence in question, from the requester, from MSD, and from the Office of Ombudsmen, the whole matter is in our view a blatant cover up of the truth behind the present government’s and the Ministry of Social Development’s agenda for welfare reforms, including work capability assessments of sick, injured and disabled on benefits, which is of course administered, implemented and enforced by MSD’s department Work and Income NZ. Dr Bratt has as a senior advisor been involved in various activities, in consultations and has conducted correspondence with other senior external advisors, details of which MSD is determined to withhold from the public. The deletion of emails, which clearly mostly included such correspondence on a range of administrative and health advisory matters, by Dr Bratt as Principal Health Advisor, is in our view an illegal act, in breach of the Public Records Act 2005. We understand it has now been followed up in the form of a formal complaint to the Chief Ombudsman under the Ombudsmen Act 1975.

We can see from this how MSD do all that is within their powers, to frustrate the release of official information they consider as highly sensitive, and even when information is made available, it is only done so in very summarised, abbreviated form, and often basically “drip fed”, after a requester involves the Office of the Ombudsmen. Given the high work load and lack of resources the Ombudsmen have, MSD can rely on any complaints taking a long time to be processed, so by the time any further details may need to be addressed, the complaint matter may be deemed less relevant, given the time that has lapsed since it was raised.

The Ombudsman has in our view in this case also not acted in accordance with his responsibilities under the Ombudsmen Act, as he should have felt compelled to further investigate matters, particularly in regards to Dr Bratt’s deletion of “all emails” for a certain period. The information and evidence that was presented to both the Chief Archivist and the Ombudsman should actually have warranted more action, but there is an evident lack of motivation by both Offices, to take on new complaints, as they have already too many issues to work with. As a separate complaint has some time ago been filed with the Chief Ombudsman by the requester, we will await the outcome of that with great interest, although this is likely to take at least a year or two, to be resolved.

 
 

Quest for Justice

 

 

09 August 2015

 
 

Please find here a link to a downloadable PDF copy of the recently updated post based on the original post:
msd-dr-bratt-present-misleading-evidence-on-worklessness-and-health-publ-post-19-09-16

 

 

Other posts of relevance to study:

 

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/2014/06/21/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/
(more parts available after a to d)

https://nzsocialjusticeblog2013.wordpress.com/2015/01/23/the-discredited-indefensible-work-capability-assessment-wca-in-the-uk-and-what-its-demise-must-mean-for-nz-welfare-reforms-part-1/

https://nzsocialjusticeblog2013.wordpress.com/2015/01/28/the-discredited-indefensible-work-capability-assessment-wca-in-the-uk-and-what-its-demise-must-mean-for-nz-welfare-reforms-part-2/

 
 

ADDENDUM 1: UPDATE ON THE ABOVE MENTIONED NEW OMBUDSMAN ACT COMPLAINT ABOUT DR DAVID BRATT DELETING “ALL” EMAILS, WHICH APPEARS TO HAVE BEEN IN BREACH OF THE PUBLIC RECORDS ACT AND RELEVANT AUTHORITIES (25 AUGUST 2015):

 

On 21 August 2015 the complainant and former O.I.A. requester received a response from Ombudsman Prof. Ron Paterson, dated 17 August 2015. In his letter the Ombudsman referred to that new complaint under the Ombudsmen Act 1975 from 07 August, and stated he would not start any new investigation of a complaint presented by the requester at the time, giving limited resources and other still active complaints in progress as reasons! He insisted the requester should instead raise the matter with MSD and their Chief Executive, who have though already and repeatedly made clear they would not comment any further on the matter.

So the Ombudsman himself is refusing to investigate a matter where the Principal Health Advisor Dr Bratt deleted ALL emails for a period, which he exchanged with a senior external Advisor, being Prof. Mansel Aylward from the UK, in his capacity as Advisor for MSD! It appears Ron Paterson, a former Health and Disability Commissioner in New Zealand, sees NO need to get answers on an apparent breach of public record keeping, for which MSD gave three conflicting explanations, like Dr Bratt only deleted “private” emails, or did delete them, while he was not acting as Principal Health Advisor.

The complaint presented all relevant details and evidence, and asked for clarifications, as the conduct was considered being illegal and unacceptable. With the Ombudsman refusing to act and to fulfill his function and responsibilities under the Ombudsmen Act, we have an indeed scandalous state of affairs, we reckon!

The whole matter deserves a separate post, but given time restrictions, I will attach a copy of that letter here for people to read and draw their own conclusions from:

Ombudsman, Complaint abt Dr Bratt deleting emails, refusal to investigate, R. Paterson, 17.08.15

Here is a high-lit version:

Ombudsman, Complaint, Dr Bratt deleted emails, refusal to investigate, R. Paterson, hilit, 17.08.15

Final Note: The matter will be followed up, and there will be more t come!!!

 
 

ADDENDUM 2: “THE ‘INVESTMENT APPROACH’ IS NOT AN INVESTMENT APPROACH”, ARGUES BILL ROSENBERG AS ECONOMIST FOR THE COUNCIL OF TRADE UNIONS (CTU), IN A PAPER PUBLISHED 16 SEPT. 2015 (05 OCTOBER 2015):

 

Not only is there a lack of medical scientific evidence to justify and support the draconian new approaches that MSD and their main department WINZ now use to pressure people on benefits to return to employment a.s.a.p., the much hailed new “investment approach” the government uses in social security to ram through “reforms” is just as flawed. This has been noticed by Bill Rosenberg who published a paper for the CTU, which I understand ‘Scoop’ have also already reported on. He is the CTU’s Policy Director and Economist (often also consulted by leading media), and he has published a must read paper, which reveals how the government’s version of an “investment approach” is not meeting standards used in other areas, for instance the insurance industry.

The government’s approach is flawed, and seems primarily designed to simply reduce the costs for government, without taking into consideration wider implications, like various risks, costs or in some cases also benefits for the individuals, that MSD and WINZ work with.

Here is a link to that interesting paper on this, well worth a read, as it proves again, we are presented rather misguided, insufficiently researched and poorly considered policy, that is also based on misrepresentation of available data and thus misinforms us. The government is keen to make things look better for itself and its agencies, but does not really deliver what is being claimed:

Click to access Investment%20Approach%20is%20not%20an%20investment%20approach%20-%20Rosenberg_0.pdf

 

And other needed, overdue, reliable evaluation information is still being withheld by the government, as this question from 17 Sept. 2015 in the House of Representatives, put by Carmel Sepuloni (Labour’s spokesperson on Social Development) to the Associate Minister for Social Development shows:
http://www.inthehouse.co.nz/video/39670

Others asked questions before, how the evaluation of reforms and outcomes was going:
http://publicaddress.net/speaker/how-is-government-evaluating-its-welfare/

The public are not given the transparency and accountability they deserve!

 
 


ADDENDUM 3: “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.”

“Beneficiaries advocate Kay Brereton said the underwhelming results showed people pushed off benefits were motivated to find work. “Unfortunately the ministry comes from a different direction – the only reason they haven’t got a job is that they are not trying hard enough.” “

Own Comments:

If this new approach, based on the ideas that work is “therapeutic” and that it has “health benefits”, is after all not bringing the supposed great “benefits”, then what must we think of it? Either there is something wrong with the way the programs are run, or the whole approach must be put into question! We are not surprised, as the evidence that is so often referred to is simply questionable – if not wrong. As written above, much evidence is not really what it is claimed to be. Besides of all that, it is no wonder then, that we get no reliable data, 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. MSD have been extremely reluctant and very uncooperative in providing sought information upon O.I.A. requests.

The agenda seems to be losing its credit and seems to slowly falling apart.

 
 

ADDENDUM 4: THE NEW ZEALAND MEDICAL JOURNAL’S ‘VIEWPOINT’ BY GORDON PURDIE ON INCORRECT INFO USED BY DR BRATT AND THE AFOEM; VOL. 128 NO 1425, 20 NOV. 2015 (added 19 May 2016):

 

So here is some interesting stuff to read from the New Zealand Medical Association website, showing us how Gordon Purdie, Sen. Research Fellow at the Dean’s Department at the University of Otago, Wellington, has also found that the “research findings” Dr Bratt uses, are not reliable and incorrect.

Look up the ‘Viewpoint’ published in the New Zealand Medical Journal from 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

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

Here is just a brief extract:
“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.”

Read the whole lot, it proves that we are served endless misrepresented information 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. Especially mentally ill will be put at great risk!

Dr Bratt, Principal Health Advisor at MSD and acting for WINZ, and his “expert” sources have been exposed, yet again.

Here is a link to a downloadable PDF:

Click to access Purdie-1874FINAL1425.pdf

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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

 
 

An updated version of this post, containing also ‘Addendums’ 1 to 4 at the end of it, dated 4 Dec. 2017, can be found and downloaded as PDF via this link:
MHES + SPES, MSD withholds O.I.A. info that may prove trials a failure, post, NZSJB, 14.04.15, upd. 04.12.17

 

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

And here is an even more up to date version of the same, containing also some ‘Addendums’ up to 4 Dec. 2017:
MHES + SPES, MSD withholds O.I.A. info that may prove trials a failure, post, NZSJB, 14.04.15, upd. 04.12.17

(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:

Click to access 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!

 
 

ADDENDUM 4: MSD’S ‘FINAL’ RESPONSE TO THE ABOVE REQUEST, RECEIVED AFTER THE INTERVENTION OF THE OMBUDSMAN, DATED 22 NOV. 2017 (added 3 Dec. 2017):

 

It took a complaint to the Ombudsman, made in late 2014, a very long wait, and a rather unsatisfactory kind of effort by their Office, to convince MSD to release some more information, which was dated 22 Nov. 2017, and received a few days later by the requester.

It provides only some further information in relation to requests 2, 4 and 7 (see the above letter and requests, dated 1 October 2014), but the answers and figures provided do show, that the MHES trials were after all not very successful at all.

See the redacted response by MSD via these links:
MSD, OIA rqst, MHES, WAA, other services, 01.10.14, further info release, anon, 22.11.2017
MSD, OIA rqst, MHES, SPES, WAA, other services, 01.10.14, further rel., hi-lit, anon, 22.11.17

And here is the original request from 1 Oct. 2014 – again, for reference purpose (anonymised):
MSD, OIA rqst, to C.E., WAAs, MHES referrals, suicide stats, etc., anon, 01.10.2014

Time permitting, a proper separate post, also covering the somewhat unsatisfactory responses by the Office of Ombudsmen, will follow some time 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):

Click to access C1%201515%20Bratt-Hawker.pdf

Medical Certificates are Clinical Instruments Too! (see pages 16, 19, 20 and 33):

Click to access 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”):

Click to access 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

Click to access 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):

Click to access annual-report-2009-2010.pdf


(see page 120)

Click to access annual-report-2008-2009.pdf


(see pages 121-122)

Click to access msd-annual-report-2007-08.pdf


(see page 132)

Click to access annual-report-2006-2007-part-1.pdf


Click to access annual-report-2006-2007-financials.pdf


Click to access annual-report-2006-2007-appendices.pdf


(see page 129)

Click to access annual-report-2005-2006.pdf


(see page 137)

Click to access annual-report-2005-2006-1.pdf


Click to access 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:

Click to access annual-report-2010-11.pdf


Click to access 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”

Click to access 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:

Click to access 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.

 

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