Archive for category WINZ Designated Doctors

MSD RELEASE OUTDATED ‘GUIDE FOR DESIGNATED DOCTORS’ AND CURRENT DESIGNATED DOCTORS LIST – ONLY UPON ADVICE BY THE NZ OMBUDSMAN


MSD RELEASE OUTDATED ‘GUIDE FOR DESIGNATED DOCTORS’ AND CURRENT DESIGNATED DOCTORS LIST – ONLY UPON ADVICE BY THE NZ OMBUDSMAN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PART 8: MSD’s LATE RELEASE OF THE OUT OF DATE ‘GUIDE FOR DESIGNATED DOCTORS’ ON 8 NOV. 2017 – ONLY AFTER INTERVENTION BY THE OMBUDSMAN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

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


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

 
 

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

 

Published: 24 July 2016

 
 

CONTENTS:

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

 

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

 

PART 1 – INTRODUCTION

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

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

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

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

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

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

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

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

 
 

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

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

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

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

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

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

 

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

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

 

Dear Ombudsman, dear staff at the Office of Ombudsmen

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The Health and Disability Commissioner Act 1994

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

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

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

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

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

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

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

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

 

The Health Practitioners Competence Assurance Act 2003

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

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

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

 

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

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

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

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

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

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

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

 

Conclusions and remedies sought under the Ombudsmen Act 1975

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

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

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

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

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

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

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

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

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

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

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

Yours thankfully and sincerely

 

Xxxxxxx Xxxxxx

 

P.S.:

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

 

Comments by the author:

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

 
 

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

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

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

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

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

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

 

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

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

 

Dear Ombudsman, dear staff at the Office of Ombudsmen

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The Health and Disability Commissioner Act 1994

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

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

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

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

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

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

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

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

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

 

The Health Practitioners Competence Assurance Act 2003

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

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

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

 

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

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

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

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

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

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

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

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

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

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

 

Remedies sought under the Ombudsmen Act 1975

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

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

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

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

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

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

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

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

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

 

Closing comments and concerns

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

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

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

 

Yours thankfully and sincerely

 

Xxxxxxxx Xxxxxxx

 
 

P.S.:

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

 

Comments by the author:

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

 
 

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

 

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Comments by the author:

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

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

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

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

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

 
 

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

 

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

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

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

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

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

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

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

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

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

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

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

 
 

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

 

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

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

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

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

 

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

 

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

 

Dear Beverley Wakem – Chief Ombudsman

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

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

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

 

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

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

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

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

 

Re Miss Gxxxxxx’s response in relation to both complaints

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

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

 

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

4. The HDC’s lack of resources

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

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

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

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

 

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

 

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

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

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

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

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

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

Yours sincerely

 

Xxxxxxx Xxxxxx

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

 

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

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

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

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

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

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

 

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

 

Comments by the author:

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

 
 

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

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

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

“Dear Mr Xxxxxx

Ombudsmen Act complaint: Health and Disability Commissioner

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

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

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

Yours sincerely

(Signature) …….

Dame Beverley Wakem DNZM, CBE
Chief Ombudsman”

 
 

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

 

Comments by the author:

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

 
 

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

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

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

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

 
 

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

 

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

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

 

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

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

 

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

 
 

Quest for Justice

 
 

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

 

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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!

2 Comments

HOW THE N.Z. HEALTH AND DISABILITY COMMISSIONER LET OFF A BIASED ‘DESIGNATED DOCTOR’


HOW THE NEW ZEALAND HEALTH AND DISABILITY COMMISSIONER LETS AN APPARENTLY BIASED GENERAL PRACTITIONER OFF THE HOOK, WHO ACTED AS A ‘DESIGNATED DOCTOR’ FOR WORK AND INCOME NZ (WINZ)

 

A True Story Revealed – Justice Yet Again Being Denied

 
 

CONTENTS:

PART 1 – INTRODUCTION
PART 2 – THE COMPLAINT TO THE HEALTH AND DISABILITY COMMISSIONER (HDC)
PART 3 – THE FIRST RESPONSE AND DECISION BY THE HDC
PART 4 – THE COMPLAINANT’S REPLY TO THE HDC AND THEIR DECISION
PART 5 – THE COMPLAINANT’S REQUEST FOR OFFICIAL INFORMATION FROM THE HDC
PART 6 – THE HDC’S RESPONSE TO THE COMPLAINANT’S OFFICIAL INFORMATION ACT REQUEST
PART 7 – THE ASSOCIATE COMMISSIONER KATIE ELKIN’S “FINAL” RESPONSE AND DECISION
PART 8 – THE COMPLAINANT’S LETTER IN RESPONSE TO KATIE ELKIN’S “FINAL” DECISION
PART 9 – THE COMPLAINANT’S REQUESTS UNDER THE OFFICIAL INFORMATION AND PRIVACY ACTS
PART 10 – THE HDC’S LEGAL ADVISOR’S RESPONSE TO THE OIA AND PRIVACY ACT REQUESTS
PART 11 – THE HDC’S TRULY FINAL DECISION, UPON SUPPOSED “REVIEWS” OF THE COMPLAINT
PART 12 – CONCLUSIONS THAT CAN BE DRAWN FROM THE BIZARRE COMPLAINT HANDLING BY THE HDC

 
 

PART 1 – INTRODUCTION

It was over three years ago, when someone approached us in an extremely distressed and depressed state of mind, clearly suffering immensely. The person shared with us some almost unbelievable experiences about how he was as a person with serious, complex mental health issues forced to see a so-called Work and Income ‘Designated Doctor’ for a medical examination, and how that doctor presented a recommendation, that was in complete contrast to what his own doctor had been diagnosing and recommending for a number of years. I felt sorry and was very concerned for the man, as he hesitantly shared, that he did at times have suicidal thoughts, which had been aggravated by some of the things that happened to him. He was certainly sharing his true experiences, as he later also presented documentary proof of what had been done to him.

The injustice that he felt he suffered at the hands of that doctor, and the unacceptable, unreasonable decisions that were made upon that doctor’s recommendation, have long been addressed by Work and Income, but it was not an easy way for our friend to get what is commonly called a “settlement” of sorts. He was though at first forced to go and fight a decision, by taking the matter as an appeal to a Medical Appeals Board (MAB), and as that outcome was only marginally “better”, he consequently even had to apply for a judicial review, with the help of legal representation that he could not afford, and initially was unable to find.

But in the end that problem was somehow resolved. What really upset him was that the doctor who caused him all the extremely upsetting and distressing experiences, was basically not being held to account for his failings and flawed recommendation. After gathering much information and seeking further advice, he remembered there is a Health and Disability Commissioner Office here in New Zealand, which is supposed to offer a complaints process to deal with medical and health professionals, who breach the ‘Code of Health and Disability Services Consumers’ Rights’. That Code is administered by the Commissioner, and it is usually only possible to take any any complaint about such a breach further, after first having presented it to the HDC, who acts like a “gate keeper” for medical and disability related complaints. The Medical Council that is the authority for many medical practitioners, and their registrations, will mostly only look at complaints, if they have first been assessed and investigated by the HDC. Indeed virtually all consumers of health and disability services are forced to first go to the HDC, for sought disputes resolutions. Our associate was not really new to the Commissioner, as he had filed a complaint on another, separate issue a year earlier, that did though only result in the HDC taking no action, for rather bizarre reasons, which we will not cover here.

So our friend did decide to file a new complaint to the Commissioner, thinking that justice should prevail, even though his different, earlier complaint had not been not successful, despite of immense efforts he had put into it. But what he then eventually found in dealing with the HDC once again, was completely unbelievable for him, while for insiders it would not have been that surprising at all.

The man, who we may also refer to as the complainant, prepared an extremely detailed and comprehensive complaint with all relevant evidence. Then he sent it to both the Medical Council and the HDC Office. The Medical Council was very swift in informing our complainant, that they would not be looking at his complaint, as the HDC was the Office they considered responsible for handling it.

Our friend had already feared that this would be the position by the Medical Council, so he was hopeful that at least the Health and Disability Commissioner would seriously and honestly assess and investigate his complaint. But as we now know, the HDC does only investigate a tiny percentage of complaints received annually, and the Health and Disability Commissioner Act, that governs the HDC, does limit very much, what a Commissioner can do, certainly when it comes to taking anything like “disciplinary” actions. There is much provision to use discretion.

So our associate went through virtual hell again, finding out, that the Commissioner took only very little action, and sought a response from the doctor that was complained about, and then made bizarre decisions, that he could not accept at all. It later motivated him to even go and raise the issues he observed with the HDC with the Ombudsman, but that process will be written about a bit later in another post, as it deserves separate treatment and attention. Readers will have their eyes widely opened upon reading this particular post, plus the ones that will follow, as it will show, that our Health and Disability Commissioner does seem rather less concerned about the many mistakes made, and certain misconduct by medical examiners, assessors and others, than with simply using the law to keep complaints at a minimum and sending endless people either to “advocacy” or to dismiss their complaints as “requiring no further action”. The post starts in earnest with the next ‘Part 2‘, containing the complete complaint sent to the HDC.

This is definitely a true story and deserves to be taken very seriously, as it presents a range of significant problems with the processes in place in New Zealand, to address medical malpractice, professional misconduct, incompetence and poor delivery of health and disability services. The systems in place leave much to be desired, and are providing little or no justice to the affected and aggrieved, that is certainly in the vast majority of cases. As for the complainant, he does understandably have very good reasons to remain anonymous, as he also has delicate health issues, and as he is therefore vulnerable. Readers are asked to respect this, and to not make efforts to establish his identity. As for documentation made available, sensitive information has been deleted or crossed out, but you can be rest assured, that all that is provided here is absolutely authentic and reliable.

Some will have read the earlier post here on the Health and Disability Commissioner, which is found here:
https://nzsocialjusticeblog2013.wordpress.com/2014/05/27/health-and-disability-commissioner-can-we-trust-in-hdc-independence/

And some will also have read our post on ‘Designated Doctors’:
https://nzsocialjusticeblog2013.wordpress.com/2013/12/28/designated-doctors-used-by-work-and-income-some-also-used-by-acc-the-truth-about-them/

 
 

PART 2 – THE COMPLAINT TO THE HEALTH AND DISABILITY COMMISSIONER (HDC)

 

In the following we present the authentic, original complaint letter sent by the complainant to the HDC Office in late June 2012. As mentioned under the ‘Introduction’, some sensitive information is crossed out and in scan copies of attached documents in PDF file format “whitened out”. The full text is shown below, but for easier reading, you may prefer the PDF file version, which can be found by clicking the following link. Further links showing attachments to the complaint can also be clicked on underneath the end of the full complaint below:

HDC, Complaint, C12HDCXXXXX, Design. Dr, Breach of Code, ltr, anon, xx.06.2012

 

Xxxxxxx Xxxxxxx
Xxxx x
xx Xxxxxxxx Street
Xxxxxxxxa
Auckland 1xxx

NHI: XXXxxxx
Phone: 09 xxx xxxx

 

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

xx June 2012

 

Attention: The Health and Disability Commissioner and the Medical Council of NZ

 

Re:
Breaches of the ‘Code of Health and Disability Services Consumers’ Rights’, the ‘Code of Ethics’ of ‘The Medical Association of New Zealand’ and legal provisions – by General Practitioner Doctor Dxxxx Xxxxxxx

 
 

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

 

Please take note of my complaint about breaches of the ‘Code of Health and Disability Services Consumer’s Rights’, which are listed in section 2 of the relevant Schedule of the ‘Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996’.

Equally there have been breaches of the ‘Code of Ethics’ of the New Zealand Medical Association, of section 8 (2) of the ‘Health Practitioners Competence Assurance Act 2003’, the ‘Health Information Privacy Code 1994’ and a breach of the ‘Health (Retention of Health Information) Regulations 1996’.

Of relevance is also ‘Cole’s Medical Practice in New Zealand’ (2011 edition) – published by the Medical Council of New Zealand, of which chapter 1 (“Good Medical Practice”) is considered to be the foundation document for standards and ethics to be applied, upheld and followed by registered medical practitioners. The Medical Council has also adopted the ‘Code of Ethics’ published by the New Zealand Medical Association, and binds itself to other codes, statutory and regulatory provisions.

Under the ‘Code of Health and Disability Services Consumer’s Rights’ the following of my rights have been breached by Dr Dxxxx Xxxxxxx, MBChB, General Practitioner, based at Xxxxxxxx Health Centre, Xxxxxxxx, Auckland:

Right 1 Right to be treated with respect
Right 3 Right to dignity and independence
Right 4 Right to services of an appropriate standard
Right 5 Right to effective communication
Right 6 Right to be fully informed

Under the ‘Code of Ethics for the New Zealand Medical Profession’, published by the New Zealand Medical Association, the following principles have been breached:

Principle 1Consider the health and well being of the patient to be your first priority.
Principle 2Respect the rights, autonomy and freedom of choice of the patient.
Principle 4Practise the science and art of medicine to the best of your ability with moral integrity, compassion and respect for human dignity.
Principle 8Honour the profession, including its traditions, values, and its principles, in the ways that best serve the interests of the patient.
Principle 9Recognise your own limitations and the special skills of others in the diagnosis, prevention and treatment of disease.
Principle 12Accept a responsibility for maintaining the standards of the profession.

Under the ‘Health Practitioners Competence Assurance Act 2003’ the following provisions also appear to have been breached:

8 Health practitioners must not practise outside scope of practice

Re the ‘Health Information Privacy Code 1994’ Dr Xxxxxxx breached following rules:

Rule 2 – Source of health information
Rule 3 – Collection of health information from individual
Rule 8 – Accuracy etc. of health information to be checked before use

Under the ‘Health (Retention of Health Information) Regulations 1996’ the following sections have been breached:

5 Definition of minimum retention period
6 Health information to be kept for minimum retention period

 

BACKGROUND:

A) Designated doctor examination by Dr Dxxxx Xxxxxxx, Xxxxxxxx Health Centre:

Following a decision by Work and Income Case Manager Pxxxxxx Lxx on 22 April 2010, to have my medical situation reviewed, I was on 09 June 2010 referred by fellow Case Manager Rxxx Gxxxxxx to Dr Dxxxx Xxxxxxx (of the Xxxxxxx Health Centre, xx Lxxxxxx Street, Xxxxxxxx, Auckland 1xxx; ph. 09 xxx xxxx) for a “designated doctor” examination under section 44 of the Social Security Act 1964.

I only selected Dr Dxxxx Xxxxxxx from a presented short-list of 6 GPs, because he was the only designated doctor offered to me by the Case Manager, who I could reach relatively conveniently with public transport, upon which I depended. He was unknown to me, and I was given no chance to check his particular qualifications, expertise and to gather any other information about him.

On 17 June 2010 well before 02:30 pm I arrived at the Xxxxxxxx Health Centre for the examination with documents from counsellors, an intern psychologist a psychiatrist and psychotherapist, all giving evidence of specialist treatment I had received for alcohol dependency and mental health conditions.

After waiting for about 15-20 minutes to see Dr Xxxxxxx, he called me up about 5 minutes after the arranged time of 02:30 pm. He asked me to enter for the first examination I ever had of this type. Dr Xxxxxxx had Work and Income forms and a copy of a medical certificate from my own doctor lying on his desk, and once I sat down, he immediately asked me numerous specifically targeted questions.

I was presented and challenged with the following clearly targeted questions:
What benefit I was on,
how long I had been on it,
what benefit I had been on before that,
when I had last worked,
why I had not continued with that work,
what work I had been doing before and since,
why I felt I could not carry on with that work,
why I had not worked since,
why I had not considered doing any other kind of work,
why I felt I could not do any work at present,
how often and for how long I had the binge type relapses I mentioned, and
what I was doing with my time every day.

I felt overwhelmed with his very direct, one-sided questions, which more resembled an interrogation than an examination. Since virtually all questions were targeted at details re my previous work, ability or inability to work, what I was doing and my benefit receipt, rather than relating to any aspects of my existing health issues, I felt pressured to reply in a defensive manner, explaining and justifying myself.

So I explained that I had received the invalid’s benefit since mid 2008, and that this was due to needing longer term treatment for addressing my alcohol dependency, bouts of depression, xxxxxxxx xxxxxxx disorder (XXX) and other related issues. I informed him that I had prior to that been on the sickness benefit since 2006, but that my doctor and Work and Income had agreed to put me on the invalid’s benefit, because my ill health and treatment were expected to take an extensive time.

I referred to my failed attempt to cope with a very stressful job I had started in operations in the xxxxxxx industry right after moving back from Xxxxxxxxx in late 2005. I informed him that the last longer term job I had prior to that ended in April 2003. Also did I mention my worsening ill health and that I had other serious difficulties back in Xxxxxxx then, which led to me suffering severe depression and worsening alcoholism, aggravated by long-term unemployment and social degradation. I made clear that I had returned to New Zealand for the reason of attempting a return to work and a better life here.

I mentioned that I broke down under unbearable stress, during severe depression and relapses on alcohol in Xxxxxxx 2006, which resulted in me being unable to cope and continue with my work, ending up in a severe crisis. I stated that I suffered from alcohol dependency, depression and XXX.

Dr Xxxxxxx appeared to be little impressed, stern, indifferent, and not sympathetic. He persisted with questions like why I felt I could not cope with the work. So I said that my former clerical work in xxxxxx processing was extremely stressful, due to high deadline-, output-performance- and other pressures.

When asked whether I had considered doing other, less stressful work, I informed him of attempts to start temporary jobs in late 2007 and in February 2008, but due to not being able to cope, I had suffered further bad relapses on alcohol, forcing me to immediately terminate employment again. I mentioned that I had considered doing some voluntary part time work for a few hours a week, but as my treatment progressed slowly, and as I also had great difficulty dealing with many other pressing problems at that time, I was not able to consider returning to work for the foreseeable future.

It was nevertheless my goal to achieve lasting abstinence from alcohol, and given the experienced financial problems I would rather be working, I said. It was my intention to return to work at some time in the future, but due to my ill health and other problems, this was not possible now, I added.

Asked re what I was doing with my time every day, I stated, that due to my poor health conditions there was a limit to what I could do and cope with during the day. I’d spend most of time at home, partly doing xxxxxxx xxxxxx, tidying up and keeping xxxxx on things, which was the result of my insufficiently treated XXX. I would also spend some time reading, writing and doing a bit of online studies and correspondence, I mentioned. At times I would go for walks, and I was working on getting some form of a lifestyle balance back, I commented.

I would regularly see a counsellor and focus on my recovery, while I tried to address and manage other pressing matters, I said. The struggle I had with major problems relating to my accommodation, that I had to move a couple of times, and that I had suffered a number of serious upsets and setbacks in my recovery, I mentioned. Resulting recurrent relapses had repeatedly set me back, I said.

Dr Xxxxxxx asked how often I had relapsed recently, so I mentioned three to four times over the previous months. Asked how long they lasted, I told him that they usually lasted 4 days, led to serious physical and mental deterioration, which was followed with long periods of withdrawal. When also asked about when I suffered the last one, I said that this happened about a week and a half before.

Increasingly concerned about his endless questions, almost exclusively revolving around work and my hypothetical ability to work, I told Dr Xxxxxxx, that due to my ongoing poor health, repeated bouts of depression, inability to deal with stressors, recent relapses and my psychological instability, I simply could not look at working in the foreseeable future. I’d need some time to recover, I made clear to him.

I mentioned that I continued to get treatment at XXXX Xxxx in Hxxxxxxxx, where I was seeing a counsellor fortnightly, after having for a longer period consulted one there weekly. My brief treatment for XXX at St Luke’s Community Mental Health Centre in 200x and my attempt to access other treatment in the meantime I did in between is endless questions re work make a mention of.

After about 8 minutes of incessant questioning, Dr Xxxxxx asked me to briefly lie down on a clinical bed. He examined my breathing, heart beat and blood pressure. While he afterwards made a few more notes, I presented him the set of documents from counsellors and specialists at XXXX Xxxx, St Luke’s Community Mental Health Centre, Xxxxx House and some other documents, which gave evidence of my diagnosed health issues and treatment by mental health and addiction specialists.

I presented Dr Xxxxxxx the following documents:
1. letter from V. Bxxxxx, intern psychologist, XXX treatment at St Lukes C.M.H.C, xx.xx.2007;
2. letter from Cxxxx Hxxxxxxxx, Clinician, XXXX Xxxx, dated xx.06.2008;
3. psychiatric assessment from XXXX psychiatrist Dr Jxxx Bxxxxx at XXXX, dated 27.08.2008;
4. letter from Mxxxxxx Sxxxxxxx, Clinician, XXXX Xxxx, dated 23.04.2009;
5. letter from T. Pxxxx, psychotherapist, ‘Xxxxx House Psychotherapy Service’, 28.09.2009;
6. letter from Mxxxxxx Sxxxxxxx, Clinician, XXXX Xxxx, dated 29.09.2009;
7. letter from Mxxxxxx Sxxxxxxx, Clinician, XXXX Xxxx, dated 23.12.2009 ( likely but unsure);
8. letter from Axx Mxxxxxxx Xxx, Xxxxx House Psychotherapy Service, dated 14.01.2010;
9. letter from Mxxxxxx Sxxxxxxx, Clinician, XXXX Xxxx, dated 15.01.2010;
10. letter from Lxxxx Xxxxxx, Clin. Supervisor, XXXX Xxxx, dated 16.06.2010 (likely but unsure);
11. letter from Lxxxx Xxxxxx, Clin. Supervisor, XXXX Xxxx, dated 06.05.2010.

Dr Xxxxxxx only glanced at two to three of the letters I presented, and then told me, that he would not need them, as I had already told him enough. I offered him to take photo copies of them, so he would have them to look at properly later, but he refused, seeing no need for that. He mentioned he’d get a report from my own doctor and told me that he would send his report to Work and Income. After this 12 minute encounter he ushered me out of his consultation room without any proper farewell.

My impression of this supposed examination was not a good one. I later that day also saw my own GP, Dr Xxxxx Txxxxxx, for a newly required Disability Certificate for Work and Income. He did upon my mention of the examination by Dr Xxxxxxx and to my astonishment confide to me, that his colleague, Dr Xxxx (in the same surgery) previously had very negative experiences with Dr Xxxxxxx, and that staff at their Medical Centre didn’t get on well with him, whenever they had to deal with him.

Through requests under the Official Information and Privacy Acts I would later establish that the following information was sent to Dr Xxxxxxx – by Work and Income and also my own GP:

1. The Medical Certificate completed by Dr Txxxxxxx, dated 22.04.2010 (by Work and Income);
2. the designated doctor referral with assessment and report forms, from case manager Rxxx Gxxxxxx, Work and Income Xxxxxxxx (sent by facsimile, 09.06.2010);
3. a short “host doctor report” by email letter from my own GP, Dr Txxxxxxx, from 18.06.2010;
4. the first issued (partly mistakes containing) psychiatric assessment by Dr Jxxx Bxxxx, psychiatrist, XXXX Cxxxxxx, dated 27.08.2008 (1 or 2 copies) (attached to 3.).

Once back home after the examination by Dr Xxxxxxx and my consultation with Dr Txxxxxx, I immediately made detailed notes about the peculiar medical examination and also Dr Txxxxxx’s comments, because I had a persistent feeling of concern about how it had been conducted.

 
 

B) Summary of diagnosis, assessment and decision by Dr Dxxxx Xxxxxxx:

 

1) In the manually completed ‘Designated Doctor Report’ Dr Dxxxx Xxxxxxx of the Xxxxxxxx Health Centre did on 17 and 30 June 2010 state the following:

Under the heading ‘Diagnosis’ and in reply to question 1 he stated as “main clinical conditions or disabilities impacting on the person’s ability to work”: “Alcohol Binge Drinker”

In reply to question 2 he commented re “what other conditions are impacting on the person’s ability to work?”: “Motivation lacking”

Re question 3 he ticked “No” in reply to whether “the impact of the condition on the person’s ability to work is likely to fluctuate or be intermittent”. NO further details are provided to question 4 open for comments as “additional diagnosis”.

Under the heading ‘Current treatment or intervention’ Dr Dxxxx Xxxxxx had ticked “No” for the question “is the person under the care of a specialist(s)?”

Nothing was noted in reply to question 6 asking “what treatment or intervention(s) is the person currently receiving?”

Under the heading ‘Impact on ability to work’ Dr Xxxxxxx has rightly ticked “No” at question 7 (re total blindness). He ticked “Yes” to question 8 and “No” to questions 9, 10 and 11. According to Dr Xxxxxxx I as the patient or client should according to question 13 be re-assessed on 17 September 2010.

To question 14 asking “how do the conditions outlined in questions 1-6 impact on the person’s ability to work?” Dr Xxxxxxx noted down: “Unreliable” and “lacks motivation”.

He did claim under question 15 that I would “now” be able to engage in work planning, training, light/selected duties and part-time work up to 30 hours per week.

As ‘Factors which impact on ability to work’ he has only ticked “substance abuse” and “motivation”.

Under ‘Planning for employment’ he replied to question 17. (“which factors have the most significant impact on the person’s ability to work?”): “Alcohol” and “motivation”.

Re question 19. he suggested that “counselling” and “planning” could address these factors mentioned above.

In question 20. he has marked it as “likely” that I could commence work in the coming 12 months.

The report was finally formally completed and signed 30 June 2010.

 

2) In a separate, summarising and typed letter – headed with ‘WINZ – Designated Doctor Report’ and dated 30 June 2010 Dr Xxxxxxx stated “Re: Mr Xxxxxxx Xxxxxxx”:

“17 Jun 2010
IB Review.
GP Dr Xxxxx Txxxxxxx, Xxxxxxxxxx Bay
Receives IB now – past two years, SB two years before this.
Last consistent work 2003. Seven years on benefit. Some years in Xxxxxxxxx on unemployment..
Prev work – xxxxxxx fxxxxxxxxx.
Problems: Alcohol binge drinking. Occas relapses lasting 3-4 days. Attends XXXX regularly – prev weekly, now every two weeks..
Letters from XXXX veriying this sighted.
Lives alone.
Says would rather work – when under stress risk of alcohol relapse.
Feels that too much to deal with now.
PB 120/70. overweight. cvs, rs, abdo nad.
Impression: 5x yrs, minimal work past 7yrs. Seems little motivation to work.

30 Jun 2010-10-17 HDR – Personality disorder – XXX, anger issues, episodic depression and alcohol misuse. Report from XXXX psychiatrist – DR Jxxx Bxxxx.
Recommended disulfiram or naltrexone for his alhol abuse – this does not seem to have been tried. It was noted that he had no signs of self neglect, good rapport, well presented, mood appropriate and no thought disorder.

Impression: A 5xyr man who has hardly worked since 40 yrs age. He is a binge drinker, has some personality issues and seems to lack any motivation to work. There are suggested treatments that do not seem to have been tried. He presents well.

Recommendation: He is not eligible for Invalids Benefit. He can certainly work at least 20hrs per week and every effort should be made to get him off benefits and into work. SB to continue meantime.


Yours sincerely …”

 

C) Diagnosis by my own GP, Dr Xxxxx Txxxxxxx, the Xxxxxxxx Bay Medical Centre:

In contrast the diagnosis and assessment by Dr Xxxxx Txxxxxx was the following:

1. According to the new type of Work and Income Medical Certificate dated 22 April 2010:

When is the person likely to be capable of:
Work planning Over 6 Months
Training Over 6 Months
Light/selected duties Over 6 Months
Part time work (up to 30 hrs/wk) Over 6 Months
Full time work (over 30 hrs/wk) Over 6 Months

Is the person totally blind? No
Unable to work 30 hours per week or more? Yes
Unable to work 15 hours per week or more? Yes
Condition expected to last at lest 2 years? Yes
Life expectance less than 2 years?

Unable to work from 26-04-2010
When should the person’s entitlement to
Benefit next be assessed? 2 years

2. According to the Disability Certificate dated 17 June 2010 (completed on the same day as Dr Xxxxxxx’s assessment!):

Under ‘Disability Details’ Dr Txxxxxx ticked “Yes” at question 3, where he was asked: “Does the person have a disability that meets the Disability Allowance criteria?”

At question 4. it asks: “What is the nature of the person’s disability?”

Dr Txxxxxx did tick ‘Depression (161)’, ‘other cardio- vascular (132)’, ‘other metabolic or endocrine disorders (151)’, ‘Alcohol (170)’.

To question 5 he indicated the expected duration of the disability as being “permanent”.

Re ‘Items / services / treatments / pharmaceuticals’ Dr Txxxxxx mentioned “prescriptions, water filters, transport, dietary supplements, garden costs, phone” that represent costs that arise from the existing health conditions and their necessary treatment.

3. The details in the above Medical Certificate and Disability Certificate were very much in line with the previous Medical Certificates issued by Dr. Txxxxxx on xx June 2008, 23 April 2008, 23 January 2008 and 03 February 2006. A Medical Certificate dated 29 October 2007 did at that time suggest that an improvement in my situation was taking place, but this prospect was short-lived and dashed soon afterwards, when an attempt by me to return to some kind of work (due to great financial difficulties) turned out to be a rushed and disastrous experience.

Medical Certificates based on diagnosis and assessments by Dr Xxxxx Txxxxxx continued to be consistent to this date, which is in clear contrast to the one off very out of line assessment by Dr Dxxxx Xxxxxxx as Work and Income commissioned designated doctor from 17.06.2010.

Indeed Dr Xxxxx Txxxxxx has shown an overwhelming level and degree of consistency in his reports on diagnosis and general health conditions and disabilities. They present a totally different, but due to the number, length of involvement, in-depth understanding and professional competency he possesses, a more convincing picture of my health, than the unprofessional, flawed, incompetent, unfounded, biased one delivered by Dr Dxxx Xxxxxxx.

 

D) Conclusions drawn and decision made by Regional Health Advisor Team at Auckland Regional Office of MSD – solely based on wrong report by Dr Xxxxxxx:

 

Mr Axxxx Axxxxxx as Regional Health Advisor for Work and Income (Auckland Regional Office) had on 08 June 2010 by email (addressed to “OHA_Client_Query (MSD)” – CC Jxxxxx Nxxxxxx) presented the selection of GPs that I was allowed to choose from. It included Dr Dxxxx Xxxxxxx.

In an email from 12 July 2010 (08:09 am), sent to “OHA_Client_Query (MSD)”, Jxxxxxxxx Axxx (for the R.H.A.) does present the following ‘Diagnosis’ about me to other staff:

“Diagnosis: Personality disorder, XXX anger issues episodic depression and alcohol misuse”

“RHA recommends: DD recommends transition to Sickness Benefit with engagement to look for work DD states client is not eligible for Invalids Benefit he con certainly work at least 20 hours per week and every effort should be made to get hm off benefits and into work SB to continue meantime. Engagement with ECV to look at work”


“Assessed Designated Doctors report by Dr Dxxxx Xxxxxxx on 30 June 2010
Medical certificate is consistent with Sickness Benefit
Client does not meet medical eligibility for Invalids Benefit”


Hence the Regional Health Advisor and his staff did from the time of receipt of Dr Xxxxxxx’s report ignore ALL medical certificates, reports and assessments from my own regular doctor for over 4 and a half years, which were based on his own diagnosis and supported by various other specialist reports and assessments that he had relied on.

 

E) Consequences of Dr Xxxxxxx’s assessment and report, and the decisions made by Work and Income – on my counselling treatment, health and general well-being:

The assessment, report and recommendations by Dr Dxxxx Xxxxxxx were fully accepted and adopted by the Regional Health Advisor and other staff of Work and Income as supposedly reliable and competent. Within days I was sent letters for appointments for discussing and preparing for training, a return to work and so forth. This put me under immense psychological stress and pressure, led to a severe crisis with major upsets, and it later lead also to the breakdown in my counselling treatment. There were moments where I displayed suicidal ideations, which has been well recorded.

Instead of being enabled to focus on needed ongoing treatment, I was forced to attend to serious challenges and to defend my rights and basic survival as a sick and disabled person. It forced me to take formal steps to seek and prepare for an appeal under section 53A of the Social Security Act 1964, to address the recommendations made by Dr Xxxxxxx and decisions made by Work and Income staff. Dr Xxxxxxx’s assessment, report and recommendations were clearly not evidence based, were unprofessional, unfair and unreasonable and showed incompetence and disregard. I could no longer focus on further treatment. I had to spend all my time on legal study and paperwork.

It took months to prepare myself for a hearing before a Medical Appeal Board appeal. That was conducted by a panel, which again consisted of 3 general practitioners without appropriate qualifications or expertise in assessing persons with complex mental health illness and addiction conditions. Although the Medical Appeal Board did reach a slightly more acceptable decision than Dr Xxxxxxx, the panel did to some degree still rely on his findings and upheld them. In summary their report and decision turned out to be also partly unfounded, lacking evidence, objectivity and competent evaluation. It turned out to also contain apparent biased, unreasonable recommendations.

Consequently I was taken off the invalid’s benefit and transferred onto the sickness benefit from xx January 2011, leading to yet worse financial problems and increased pressures, as I now had to present new medical certificates from my doctor every 90 days and struggled to survive week to week.

The decision by the Medical Appeal Board and Work and Income forced me to find the assistance of a lawyer, to apply for legal aid and then file a Notice of Proceedings with a Statement of Claim and Affidavit before the High Court in August 2011. All that required huge, stressful efforts and time. This was followed by intensive, lengthy, distressing, arduous settlement negotiations to resolve particular issues and achieve a basic, acceptable outcome (Note: Part of original sentence deleted for legal reasons!). The legal case could likely have been pursued further, but it was eventually due to my radically worsening health, that I was weeks ago forced to agree to a minimum kind of settlement.

Concurrently I had already from April 2009 been struggling to deal with a few minor legal issues that had resulted from a neighbourhood dispute (xx April 2009), a charge laid due to alleged “disorderly behaviour” (at a xxxxxxx xxxxx on xx Nov. 2009) and another charge for alleged “offensive behaviour” (17 May 2010), while a single minor conviction would have resulted in a loss of a so-called “clean slate” I had since 200x been entitled to under the ‘Criminal Records (Clean Slate) Act 2004. Just one minor conviction would have made it impossible for me to find employment for up to 7 years, as some previous minor (alcohol related) convictions from the mid 1980s would have been “re-activated”. I spent most of my time fighting for legal aid that was initially denied, for justice and with huge stress and the help of lawyers managed to have all charges dropped or withdrawn one by one by mid 2011.

The fallout from Dr Xxxxxxx’s decision – and numerous other developments (e.g. difficulties with some boarders, whom I had due to financial pressures have to share my flat with) – severely and negatively impacted on my ability to concentrate on any urgently needed treatment of my illnesses. Instead I suffered irreparable damage, being disabled to a degree that I am struggling to do simple daily chores at my home. My recovery was severely disrupted since mid 2010, and I made no progress in addressing health issues. I would by now have recovered better and possibly would have been able to look at a return to some form of training or employment, had it not been for the irresponsible actions by Dr Dxxxx Xxxxxxx, which I will address in detail in the following chapters of this letter.

 

Breaches of the ‘Code of Health and Disability Services Consumers’ Rights’ identified:

 

A: Right 1 – Right to be treated with respect
(1) Every consumer has the right to be treated with respect.

Dr Dxxxx Xxxxxxx displayed a clear bias against me as referred client, and apparently also towards the medical professionals at the Xxxxxxxx Bay Medical Centre:

The conduct and manner Dr Xxxxxxx displayed during the medical examination for a second opinion, that was sought by Work and Income, was unprofessional, incompetent, not objective, biased, lacked respect, and was unfairly focussed almost exclusively on questions about work, past problems with work, why I had reservations to resume work, the type of benefits I received, how long I had been on a benefit, whether I had considered part time work and similar. Only little attention was given towards questions relating to my actual health issues. I was given very little time and opportunity to try and explain my situation and health issues.

Presented letters from specialists were only partly and too briefly glanced at, and offered photo-copies were declined with the reason that they were “not needed”.

When I later on 17 June 2010 met with my own trusted GP, Dr Xxxxx Txxxxxxx, he did to my surprise confide to me that his colleague Dr Xxxx, who is working at the same Medical Centre in Xxxxxxxx Bay, had very negative experiences with Dr Xxxxxxx. Dr Xxxxxxx at the Xxxxxxxx Health Centre had repeatedly showed a lack of co-operation and respect when dealing with matters that involved both clinics. He was described by some staff as arrogant. Hence I must conclude that due to past differences Dr Xxxxxxx held a biased and negative view towards doctors and staff at the Xxxxxxxxxx Bay Medical Centre, including Dr Txxxxxx.

Given that only about 10 to 12 minutes were spent with me during the “examination”, I feel that Dr Xxxxxxx was not at all sincerely interested in my problems, concerns and well-being. Even Work and Income do accept and expect that a proper medical examination and assessment should take about 30 to 45 minutes to be conducted and completed. This was certainly not the case in my examination by Dr Dxxxx Xxxxxxx. My impression was (and is) that the examination was conducted by Dr Xxxxxxx with the least, rushed efforts and a prejudicial mindset, which influenced his poor diagnosis and recommendations.

B: Right 3 – Right to dignity and independence

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

The already mentioned “bias” that is apparent from certain notes made in the clinical file about me also represents a clear breach of “right 3”, in that it is a clear breach of my dignity.

There were extremely important aspects of my health issues, conditions and disabilities that Dr Xxxxxxx did not sufficiently enquire about – nor in any other way show any interest in. His targeted questioning was pre-occupied with aspects of work and benefit dependence. He ignored my references to serious problems I was dealing with at the time, and he did not allow me to further explain details re this, rather pressing on with his prepared set of one-sided questions and only allowing minimal comments by me. He did not appear to attempt to properly understand my concerns re my health and other problems. This inevitably led to him not understanding or appreciating what did actually happen to me over the previous two years, and what hampered my recovery from alcohol addiction, depression, XXX and related issues.

During the “examination”, and through the way he conducted it in a very questionable, inadmissible manner; it became apparent that he was not that much interested in my answers and comments. He already appeared to have made up his mind from the beginning.

Yet it was Dr Xxxxxxx’s responsibility to offer due respect and give credit, to accept my right to dignity and to consider the information I attempted to provide to him in the form of medical and treatment related documents, in addition to what I attempted to communicate during his “interrogation style” interview focused on work, and only eventually a few health issues.

Last not least Dr Xxxxxxx should have informed me about the way he would conduct the examination, of the right I had as the person to be assessed (e.g. to withdraw my consent and to object to the way parts of all of the examination and interview were being conducted) and about privacy concerns, e.g. re a host doctor report he intended to request. He clearly did not.

C: Right 4 – Right to services of an appropriate standard
(1)Every consumer has the right to have services provided with reasonable care and skill.
(2) Every consumer has the right to have services provided, that comply with legal, professional, ethical, and other relevant standards.
(5) Every consumer has the right to co-operation among providers to ensure quality and continuity of services.

There have been breaches of “right 4”, as the seriousness of inaccuracies and mistakes made by Dr Dxxxx Xxxxxxx in his assessment and report display a fundamental failure to uphold reasonable and expected standards of diligence, care and skill.

While examining me and completing his assessment, Dr Xxxxxxx failed to acknowledge and consider the very relevant and important information, that proved to be essential to make a true evaluation of aspects of my already well documented ill health, the various conditions, disabilities and my problematic general circumstances and situation, that had and were seriously impacting on my ability to take on and perform any work in open employment.

The primary information Dr Xxxxxxx appears to have used for making his unfounded diagnosis and biased, unprofessional assessment was apparently his personal interpretation of my answers to his very narrow selection of questions – targeted almost exclusively at facts re my long benefit history, past work, the hypothetical ability for me to perhaps do any alternative work and my personal position and concerns regarding a resumption of work. He only offered a short glance at just 2 or 3 letters from a wide range of presented, highly relevant documents; that I had received from certain treatment and assessment specialists. Apart from that Dr Xxxxxxx simply checked and measured my breathing, heart-beat and blood pressure.

A very brief, summarised host doctor report from my GP, Dr Xxxxx Txxxxxx, which was neither requested nor returned in the required form, was apparently not given that much credit and weight, same as the more comprehensive contents of an attached assessment by Dr Jxxx Bxxxx, psychiatrist at XXXX (dated 27.08.2008).

What is of particular concern, and which has already been raised as part of a separate complaint by me to the Health and Disability Commissioner (see reference C11HDCxxxxx for a complaint about XXXX counsellors, filed 08 and 09 August 2011), the host doctor report by my own GP did regrettably contain a serious mistake. It should never have been included in such a medical report, but the mention of an alleged “assault” that I committed, is likely to have also influenced the decision making by Dr Xxxxxxx, causing him to adopt a rather negative view of myself, and thus applying a degree of negative bias to the assessment.

The fact that Dr Xxxxxxx did even choose to ignore the fact that I had for some time been receiving specialist treatment (counselling, group support, XXX treatment at St Luke’s Community Mental Health Centre), and that I was still engaged in ongoing counselling with XXXX Xxxx in Hxxxxxxx, does strongly suggest selective judgment.

In his Designated Doctor Report he did state that I was not under the care of a specialist(s)! This can be seen from his replies to questions 5 and 6 on the manually completed assessment and report form for Work and Income.

That is clearly completely wrong, because I have been in ongoing treatment with XXXX (Xxxxxxxxx Alcohol and Drug Services) AND other services since early 2006.

I received counselling, group therapy and other support from clinicians, practitioners and facilitators at XXXX since February 2006. XXX treatment was offered to me in form of a briefly available intervention treatment based on cognitive behavioural therapy – as well as attempted xxxxxxxx treatment – at St Luke’s C.M.H.C. during 2007. Other attempts were made to access treatment elsewhere, regrettably without success, also with insufficient funding being offered by Work and Income, to get further treatment for my illnesses and conditions. It is astonishing that Dr Xxxxxxx failed to acknowledge this, even though documentary evidence was offered and delivered. He chose not to view and accept it, which is unprofessional and unethical.

Then Dr Xxxxxxx also did make a very incompetent and wrong diagnosis by confusing cause and result in questions 1 and 2 on that same manually filled out Work and Income designated doctor report form. All he writes is “Alcohol Binge Drinker”, which is hardly a condition as such, but rather a symptom of the condition of alcohol dependency. The same applies to his comment of “Motivation lacking”. He did not bother putting in the required READ codes and in question 3 ignored the fact that likely re-occurring relapses, bouts of depression and their consequences would actually mean that the impact of my conditions would certainly be “fluctuating” and/or be “intermittent” for certain longer periods.

Equally Dr Xxxxxxx gave the wrong answers to questions 9 and 10 on the form, as all evidence presented to him should have suggested that I was not able to work for more than 15 hours a week. Also are conditions like XXX and alcohol dependence permanent conditions, the latter of course being possible to “treat” in such a way to achieve lasting abstinence. The information provided to Dr Xxxxxxx did not at all support his presumptions that lasting, longer term sobriety and abstinence were likely to be achievable within a short to medium period.

Due to Dr Xxxxxxx having failed to come to the correct diagnosis and assessment of my medical problems, he naturally also incorrectly answered to questions 14, 15, 16, 17, 19 and 20. He ignored the conditions of XXX, depression and hypothyroidism, as if they did not exist.

The report completed by Dr Xxxxxxx is in stark contrast to the historic and even following medical assessments by my own doctor, which have shown a high degree of consistency and are supported by assessments; sundry reports and letters form other specialist medical practitioners and health professionals. It should have been the duty of Dr Xxxxxxx to apply diligence, care and skill and thus give the other information the due credit and consideration.

The clear inability of Dr Xxxxxxx to make a correct diagnosis is evidence that he as a registered general practitioner with specialist knowledge in obstetrics and gynaecology was not sufficiently and appropriately qualified to conduct the assessment of a client with my particular complex medical conditions. My particular and complex illnesses include alcohol dependence (commonly referred to as “alcoholism”), which has by XXXX staff repeatedly been assessed and acknowledged as being at a high to severe level. Also do I suffer from depression and the disabling disorder XXX. It requires a person with sufficient expertise in mental health (psychiatry, psychology or psychotherapy) and also sufficient competency in the assessment of addiction illnesses to conduct an expert assessment of a person like me.

In view of this, Dr Xxxxxxx should clearly have acknowledged and accepted his professional limitations and refrained from conducting the assessment and examination sought by Work and Income. As he did not do this, he clearly acted outside his scope of practice, which I consider to be a serious matter.

As Dr Xxxxxxx also failed to inform my own usual doctor about the outcome and report of his assessment, he did not provide any assistance to ensure transparency and continuity in treatment and support for my recovery.

Consequently professional, ethical and legal standards were not upheld by Dr Xxxxxxx during and after the examination and assessment conducted on me on 17 June 2010 -and completed by way of a final report on 30 June that same year.

D: Right 5 – Right to effective communication
(2) Every consumer has the right to an environment that enables both consumer and provider to communicate openly, honestly, and effectively.

There has been a breach of “right 5” under the Code. I was as the assessed person given insufficient chance to exercise the right to communicate in an environment that enables both consumer and provider to communicate openly, honestly, and effectively.

Dr Xxxxxxx did from the start of the examination NOT inform me properly about the way he intended to conduct it. No mention was ever made of my right to object to him conducting the assessment, nor about my right to withdraw from it, once I started to feel uncomfortable, suspicious and no longer had any trust in the process applied by him. I was also not consulted about any privacy questions that should have been relevant to discuss.

His “examination” did resemble a kind of “interrogation” rather than a respectful, fair, balanced and objective interview. His focus was almost solely on getting answers about past work I did, how long I had received the types of benefits I had been on, why I did not continue with started work in 2005/2006, why I could not consider alternative work, what I was doing with my own time while not working and why I felt I could not return to any kind of work for a longer time.

I was not given sufficient opportunity and time to explain matters of my concern about my health issues, and instead I was being rushed through a forceful and one-sided interview, so that there appeared to be only a secondary concern and emphasis on matters re my health.

The supposed “examination” was in the end not a proper examination at all, and it appeared, that the result was pre-determined by his personal impression of me, and the restricted range of questions and possible answers I could give to them. I left the examination with no trust in it.

Only later would I learn through an Official Information Act request, that the host doctor report sent by Dr Txxxxxx to Dr Dxxxx Xxxxxxx also contained reference to an “assault” that I had allegedly committed and was trying to defend with legal aid before the courts. I had never committed, nor been charged for an assault, and it should in any case have been expected that Dr Xxxxxxx would show professional conduct in not paying too much attention to such non medical information, which instead appears to have led to him adopting a biased view of me. I was certainly given NO chance to respond to any of the information sent to him by my doctor.

E: Right 6 – Right to be fully informed
(1) Every consumer has the right to the information that a reasonable consumer, in that consumer’s circumstances, would expect to receive, including –
(c) advice of the estimated time within which the services will be provided; and
(e) any other information required by legal, professional, ethical, and other relevant standards; and
(g) the results of procedures.

Dr Xxxxxxx is also responsible for a breach of “right 6”, as he did not fully inform me about:

1. The way he was going to conduct the examination and assessment;
2. I was never informed about any legal rights that I had to object to his approach, his qualifications and possible lack of expertise, and to withdraw from the examination;
3. he never consulted me about the assessment/report he was going to prepare and what recommendations he would make to Work and Income, so I was given no input at all;
4. I was not asked about what any steps or measures that could be considered to assist me to plan and prepare for a return to work, again I had no input at all to that part of the exam;
5. Dr Xxxxxxx did not discuss with me, nor did he indicate, that he was also supposed to send a copy of his final assessment and report to my own doctor (see expectations on pages 13 and 24 in the ‘Guide for Designated Doctors’ from Work and Income – and points 16 and 17 in the statement issued by the Medical Council of New Zealand: ‘Non-treating doctors performing medical assessments of patients for third parties’).

As I already explained and elaborated on most of these points under chapter “D:” and other parts in this complaint, there is no need to deliberate on this too much further, but it is clear, that Dr Xxxxxxx did not at all make any reasonable effort to inform me about the aspects of the examination, assessment and processes he would follow during its course and afterwards.

 
 

Breaches of the Code of Ethics of the New Zealand Medical Profession (by the NZMA):

 

I Principle 1 – Consider the health and well being of the patient to be your first priority.

Even though the relationship scenario between Dr Xxxxxxx, as the Work and Income commissioned assessor and me as the assessed person did not represent the usual practitioner – patient relationship, Dr Xxxxxxx did according to the ‘Code of Ethics of the New Zealand Medical Profession’ and various legal requirements and other standards have to give proper, sincere considerations for ensuring the health and well being of myself.

Sadly this was not what he did, because due to the already mentioned, and also in following parts to be stated failures; he acted irresponsibly and put my well being and safety at grave risk by not giving due consideration to relevant health information and not completing an objective, evidence based and reasonable report. He allowed bias to influence his decisions.

By making a flawed, inappropriate and misleading assessment, and by passing on a report to Work and Income, that ignored factual medical information and did not seek any proper input from me as the assessed person, he put at risk my health and well being. Staffs at Work and Income were consequently caused to rely on incorrect medical information and to make decisions based on this, which led to very serious, harmful consequences that I suffered.

II Principle 2 – Respect the rights, autonomy and freedom of choice of the patient.

Due to the way the “examination” and “assessment” was conducted, with me being “targeted” with an array of one-sided questions, primarily asking me about past benefit receipt, past work, problems re maintaining work, questions about why I did not continue with work, what my objections were to resuming work, and only in the end placing rather secondary emphasis on what my actual health problems were, what my disabilities were, and what incapacitated me from coping with work, let alone very basic day to day chores and challenges, Dr Xxxxxxx did not sufficiently respect any of my rights, autonomy and freedom. He certainly ignored my limited input and even discouraged it. He did not properly stress any of my mental health conditions in his report, and dismissed my serious alcohol addiction as mere “binge drinking”. That is not conduct that meets the standard expected under principle 2 of the Code.

III Principle 4 – Practise the science and art of medicine to the best of your ability with moral integrity, compassion and respect for human dignity.

One should have expected Dr Xxxxxxx, as a qualified general practitioner, with a specialisation in obstetrics and gynaecology, registered under the vocational scope with the Medical Council, to be aware of, mindful of and responsible enough of the requirement to perform his tasks and responsibilities with integrity, compassion and respect for my dignity.

As already mentioned under “II” above, he failed to do so, and he conducted an assessment that he himself was not really sufficiently qualified and experienced enough to perform. It would have required a medical practitioner experienced with appropriate in-depth understanding of mental health conditions and with sufficient expert ability and knowledge of assessing persons with addiction problems, to properly and competently assess me in an examination of that type. Indeed Dr Xxxxxxx should have declined making the assessment, as he was not suitably qualified for doing it. At no time did he show any compassion towards me.

IV Principle 8 – Honour the profession, including its traditions, values, and its principles, in the ways that best serve the interests of the patient.

Regrettably Dr Xxxxxxx did his profession – and the principles persons working in it are supposed to follow – a great and serious disservice, by conducting an assessment of a person he should with his markedly different qualifications and expertise not have assessed at all. He also did not follow numerous guidelines set under the Code, statutory and regulatory provisions. He did treat me disrespectfully as a client/patient (to be assessed) and let down his profession by not abiding to values and principles that should be maintained at all times.

I must and can only refer to what has already been stated in regards to breaches of the Code of Health and Disability Services Consumers’ Rights’, and of other standards, to simply emphasise the failings by Dr Xxxxxxx.

V Principle 9 – Recognise your own limitations and the special skills of others in the diagnosis, prevention and treatment of disease.

By accepting a referral from Work and Income to perform and conduct an examination and assessment of a person with established mental health issues and clear addiction conditions, and by proceeding with it, despite of lacking the appropriate, sufficient qualifications and in-depth knowledge and understanding in the fields of mental health, psychology, psychiatry and addiction diagnosis and treatment, Dr Xxxxxxx did as a general practitioner with specialisation in obstetrics and gynaecology clearly act outside his vocational scope of practice.

The result of his assessment and his report clearly show that he lacked a solid enough understanding and insight in those areas of medical practice. He allowed himself to be misled by personal misinterpretation and apparent bias, and he made a diagnosis and took further conclusions, which were totally wrong, mixing cause and result, falsely confusing symptoms and conditions, merely noting down “personality disorders” and a “lack of motivation”, etc..

That is not professional conduct to a standard that should be expected of Dr Xxxxxxx, and he should instead have realised his limitations and refrained from conducting the examination.

VI Principle 12 – Accept a responsibility for maintaining the standards of the profession.

Dr Xxxxxxx has not lived up to his responsibility and the standards of his profession. The only logical step for him would be to in hindsight accept his failures, to apologise for his wrong actions and conduct, and to accept full responsibility for what happened in consequence.

That is indeed what I expect from Dr Xxxxxxx now, as he has thus far not lived up to any level of responsibility for misdiagnosis, professional misconduct, biased behaviour, breaches of rules, guidelines, laws and regulations, and for causing a very serious amount of damage to my health and general well-being, last not least also severely upsetting my prospects for a successful recovery, which has led to a set-back of over two years, and resulting loss in income that I could have earned by now.

 
 

Under the ‘Health Practitioners Competence Assurance Act 2003’ Dr Xxxxxxx breached the following provisions:

 

8 Health practitioners must not practise outside scope of practice

(2) No health practitioner may perform a health service that forms part of a scope of practice of the profession in respect of which he or she is registered unless he or she —
(a) is permitted to perform that service by his or her scope of practice; and
(b) performs that service in accordance with any conditions stated in his or her scope of practice.

As a medical practitioner Dr Dxxxx Xxxxxxx has been and still is registered with the New Zealand Medical Council. He is a qualified Bachelor of Medicine and Bachelor of Surgery (MBChB, University of Auckland 1976) and also has a Diploma of the Royal College of Obstetricians and Gynaecologists from the Royal College of Obstetricians and Gynaecologists, England. He was a member of the Royal College of General Practitioners in the UK since 198x, and he has been a Fellow of the Royal New Zealand College of General Practitioners since 200x.

Dr Xxxxxxx’s qualifications clearly are in general practice and represent that of a traditional physician, with a specialisation in obstetrics and gynaecology. I appreciate he has a vocational scope of practice.

There is no evidence of Dr Xxxxxxx having any substantial, formal qualifications (i.e. post graduate) in the areas of psychiatry, psychology or in the areas of assessment and/or treatment of addiction.

As my illnesses, conditions and disabilities clearly primarily are alcohol dependency (“alcoholism”), depression and xxxxxxxxx xxxxxxxxxxx disorder (XXX) as an anxiety disorder, worsened by also diagnosed hypothyroidism; it appears that Dr Xxxxxxx did not have the required, appropriate professional qualifications and expertise to competently conduct a thorough examination and assessment of a person with my particular complex health issues and conditions.

By having accepted a referral from a Work and Income case manager to examine and assess me as a client with primarily mental health and addiction illnesses, and by proceeding with it, he appears to have acted outside of his scope covering registered general practice. As a well educated and qualified professional Dr Xxxxxxx should have realised and acted upon this conflict from the outset, and thus refused to accept examining and assessing me with my known complex medical background.

His actions put him in breach of the Health Practitioners Competence Assurance Act 2003, which is a serious matter, and which should prompt the New Zealand Medical Council to take necessary action. Only proper, evident and certified additional qualifications in mental health and addiction should allow a general practitioner to assess a person with a complex medical picture as the one I have.

 

Under the ‘Health Information Privacy Code 1994’ Dr Xxxxxxx ignored following rules:

Rule 2 – Source of health information

Provided that Dr Dxxxx Xxxxxxx from the Xxxxxxxx Health Centre would, as an assessing medical practitioner acting for a third party, have been acting within his professional scope of practice, then he would likely have had the authority to lawfully collect health information from me for the purpose of the medical examination and following assessment that he was expected to complete.

That would certainly have been the case, had I given my approval of this and consented to it in full knowledge and awareness of my rights as a patient or client to be assessed. I agreed to provide certain information, but I was never asked whether I agreed to Dr Xxxxxxx seeking a host doctor report from my own GP. Instead Dr Xxxxxxx simply stated, that he would ask my doctor for that, without asking me for my position re this. As I wasn’t informed of my rights, I did feel to have no input.

In any case, Dr Xxxxxxx should according to rule 2 of the H.I.P.C. 1994 primarily have relied on the information that I provided him during the interrogative interview, and that I was willing to provide to him in the form of additional letters from counsellors, a psychiatrist, a psychologist and psychotherapist, who had been involved in my treatment and/or previous assessments.

Dr Xxxxxxx breached sub-rule (2) (a) of rule 2, because he did unreasonably assume that I would consent to a report from my GP to be requested and accessed. He did not make any appropriate effort to seek my consent. Matters re rule 3 (1) were never ever raised by Dr Xxxxxxx. It appears that sub-rules (2) (c) to (h) did not apply in that scenario, so there was no reason and justification for Dr Xxxxxxx to act in the manner he did, thereby ignoring my autonomy as a person being examined.

Rule 3 – Collection of health information from individual

Dr Xxxxxxx did at no time before, during or after the examination and his consequent assessment inform or consult me re questions covered by provisions under sub-rule (1) (e), (f) and (g). One should strictly also expect that he would have informed me of sub-rule (1) (a) to (c), but given the fact that I was aware what the examination was conducted for, that may not have been considered necessary.

The rushed, somewhat forceful way of interviewing by Dr Xxxxxxx did not give me any chance to consider raising any questions concerning privacy issues, same as I was limited in the scope I could have given answers to his specifically targeted questions I was confronted with.

Most certainly Dr Xxxxxxx breached sub-rule (2). Sub-rules (3) and (4) do not appear to apply to the particular examination scenario I was exposed to.

Rule 8 – Accuracy etc. of health information to be checked before use

By at least partly ignoring medical diagnosis- and related information that was contained in a medical certificate completed by my own GP, Dr Xxxxx Txxxxxx of the Xxxxxxxxxx Bay Medical Centre, on 22 April 2010, by insufficiently considering information given in an assessment by XXXX psychiatrist, Dr Jxxx Bxxxx, dated 27.08.2008, by not taking reliable photo copies of further medical records in the form of letters from professional, registered alcohol and drug clinicians (“counsellors”), an intern psychologist from St Luke’s Community Mental Health Centre and a psychotherapist from Xxxxx House, Dr Xxxxxxx acted in serious neglect, not even attempting to ensure that the information that was made available AND offered to him, was correct and complete.

As already sufficiently explained, the interview conducted during the medical examination on 17 June 2010 consisted of almost exclusively questions about work, benefit status, ability and availability to resume work, my reservations to taking up work and only secondarily related to questions about my complex health conditions and disabilities. No attempt was made to establish my true health situation.

The assessment from XXXX psychiatrist Dr Bxxxx may have appeared to be insufficiently “current”, hence it should have been the duty of Dr Xxxxxxx to thoroughly examine and consider more current and relevant information, which were made available and offered in the form of the additional documents, as well as information that was communicated in the host doctor report from Dr Txxxxxx. It appears that Dr Xxxxxxx did at no time see a need to contact my own GP by telephone, to perhaps discuss particular details that he may have felt uncertain about. There is no record of a consultation.

By failing in ensuring currency, relevancy and accuracy of information, Dr Xxxxxxx relied on insufficient and wrong information, thus making an assessment and report, which actually exposed me to substantial harm, as later developments after the examination and presentation of his report show.

 

Under the ‘Health (Retention of Health Information) Regulations 1996’ Dr Xxxxxxx breached the following sections:

5 Definition of minimum retention period
6 Health information to be kept for minimum retention period

Under the ‘Health (Retention of Health Information) Regulations 1996’ Dr Xxxxxxx is also expected to keep ALL medical records relating to the examination for at least 10 Years (see sections 5 and 6 re of the Regulations re “minimum retention period”).

Dr Xxxxxxx has evidently failed to do this, as my recent applications under the Privacy Act 1993 (and the above mentioned ‘H.I.P.C. 1994’) revealed, only the manually completed designated doctor assessment and report form for Work and Income, and a request letter from him to my own GP (asking for a Host Doctor Report) were being kept in the form of document copies in his files. That at least is all that he presented to me as the only documents he had on file about me.

Dr Xxxxxxx had though been sent a summary host doctor report by email from my GP on 18 June 2010, which he should have kept on file, but this was not done. This was also not done in regards to “letters” from XXXX, my GP, Dr Txxxxxx, referred to in his report letter of 18 June 2010, which clearly includes the assessment by Dr Jxxx Bxxxx, psychiatrist for XXXX, which was at that time the only document my GP could according to records have had on file from XXXX. As there were two copies of that, one initial one with some mistakes, and another one that was partly corrected, it could be; that both copies were sent to Dr Xxxxxxx. According to Dr Xxxxxxx none of these were kept on his file.

Dr Xxxxxxx also failed to keep any record of his notes or transcripts that he must have made during the examination consultation and re phone calls made, or received in relation to the examination under section 44 of the Social Security Act 1964. There have been no copies kept of an email he received from Work and Income case manager Rxxx Gxxxxxx on 09 June 2010, or of any other correspondence.

I have a copy of the report dated 18 June 2010, which my doctor sent to Dr Xxxxxxx, and information contained in it clearly refers to letters from XXXX from 2008.

The fact that Dr Xxxxxxx has not kept all the mentioned documents, correspondence and records clearly puts him in breach of the Health (Retention of Health Information) Regulations 1996’.

As a member of the Medical Council of New Zealand, Dr Xxxxxxx should also have been familiar with the Council’s statement in its document ‘The maintenance and retention of patient records’ from August 2008. That statement with the recommendations and expectations of the Medical Council from its members, which includes sufficient references to the ‘Health (Rentention of Health Information) Regulations 1996’, appears to have been ignored, or at least not properly followed by Dr Xxxxxxx.

 

Other relevant issues to consider:

Requirements set by Work and Income and the Ministry of Social Development, particularly by way of the resource manual ‘Guide for Designated Doctors’ (2008 issue):

Since 2008 the Ministry of Social Development (MSD) has followed a new approach for appointing and working with designated doctors, who are almost exclusively general practitioners (GPs). ‘Health and Disability Coordinators’ closely liaise and cooperate with selected practitioners, themselves being overseen, instructed and mentored by the so-called Principal Health Advisor and Principal Disability Advisor employed by MSD since late 2007.

The Ministry relies on GPs as designated doctors for conducting examinations, reviews or reassessments under sections 54B (3) and 44 of the Social Security Act 1964.

Case Managers directly dealing with health affected clients also have direct contact with medical practitioners (mostly GPs but also specialists) when seeking clarifications re medical certificates and other medical documents about a client’s health conditions and disabilities, which may affect their ability to work and will determine what kind of benefit is appropriate.

In certain cases Regional Health Advisors (RHAs) and Regional Disability Advisors (RDAs) working at the Ministry’s and Work and Income’s Regional Offices actively work with GPs, discussing specific cases, and to some degree assisting in the areas of training and/or consultations between the Principal Health Advisor and practitioners.

Since 2008 the Ministry has conducted regular training sessions for medical practitioners (mostly GPs) accepted as designated doctors. These sessions were held all over the country, involved introductions, presentations, active scenario discussions and informal conversations (used for “bonding”) by MSD staff – like the Principal Health Advisor Dr David Bratt himself.

Dr David Bratt, a long term general practitioner from Wellington, has been implementing, managing and even himself conducting the “designated doctor training”, since he was appointed by the Ministry to his new position in 2007. He is well known for his very pronounced, firm view and position in regards to sick and disabled persons’ “work ability”.

Given my own experiences, what I learned through other affected persons and the media, there appears to be a justified reason to be very concerned about the degree to which some medical practitioners may possibly be influenced in their supposedly “independent” decision-making, by the very training they receive as designated doctors from the Ministry.

Some training and related presentation material that I obtained under the Official Information Act 1982, by way of online research and through other channels give reason to suggest that more scrutiny and caution should be applied in regards to the content and applied approach provided by the Ministry for this training, which may under certain circumstances result in biased perception and even conduct by medical practitioners exposed to it.

In any case Dr Dxxxx Xxxxxxx would at least have been expected by the Ministry to act and adhere to standard and basic expectations, requirements and guidelines set out in a so-called ‘Guide for Designated Doctors’ (see attached copy from 2008), which is the main resource manual published by the Ministry of Social Development for designated doctors conducting examinations and completing a designated doctor assessment and report form.

Dr Xxxxxxx was expected to do the following during and after the examination he conducted on me on 17 June 2010:

1. Show respect for me and treat me fairly as a patient to be examined and assessed for ‘Work and Income’ as a third party (belonging to the Ministry of Social Development);
2. give competent, professional, objective, fair and reasonable consideration to any medical information that was or appeared relevant to the examination (incl. client comments; letters, assessments, other information from other medical professionals and specialists involved in my treatment and support); see questions 5 and 6 in report;
3. follow the instructions on page 13 of the Guide, titled “Completing the Designated Doctor Report” (see emphasis on course and priorities under “Report Form”), which state that he first should have thoroughly established illness and disability information;
4. consulted and asked me prior to completing questions 17 to 21 in the Assessment and Report form, relating to ‘Planning for employment’;
5. request and consider a Host Doctor Report by my own GP, Dr Xxxxx Txxxxxx of the Xxxxxxxxxx Bay Medical Centre (see page 13 of the ‘Guide for Designated Doctors’);
6. upon completing the examination and final assessment to also send a copy of his report or assessment to my own GP, Dr Xxxxx Txxxxxx (see pages 13 and 24 of the ‘Guide for Designated Doctors’);
7. Dr Xxxxxxx was expected to discuss the report with me, prior to sending it to Work and Income (see page 13 of the ‘Guide for Designated Doctors’).

 

An examination of the assessment and report by Dr Xxxxxxx proves the following:

1. Dr Xxxxxxx did not show the due respect and fairness to me as a patient to be assessed by a third party (Work and Income). He did not explain to me details and aspects of the examination and the way he intended to conduct it with me, before questioning me almost exclusively about my benefit situation, past work, inability to work, what I was doing with my time, and so forth. He instead displayed a bias and degree of incompetence, making a wrong, dismissive and irresponsible diagnosis.

2. Dr Xxxxxxx ignored information supplied in the form of the Medical Certificate issued by my own GP, Dr Txxxxxx (fr. 22.04.2010, sent by WINZ), psychiatric assessments from XXXX psychiatrist Jxxx Bxxxx (sent by my GP), a summarised host doctor report from my GP (sent 18.06.2010) and also largely ignored submissions by me during the consultation, as well as in the form of documents from counsellors and specialists treating me. He did to questions 5 and 6 in the assessment and report form tick a box indicating that I was NOT “under the care of a specialist”, while it was evident that I was getting specialist treatment at XXXX, same as earlier at St Lukes C.M.H.C.. He acted irresponsibly, incompetently, unprofessionally, failed to be objective, fair and reasonable by not giving the due consideration to all this in his diagnosis on the form.

3. He also failed to follow the prescribed form for completing his assessment and report by not adhering to the particular and carefully worded guidelines on top of page 13 of the form – under “Report Form”. Instead of first establishing an in depth picture of my illness and disabilities, Dr Xxxxxxx focused primarily on questions about my past work, reasons for not working or being able to work, my view about past and alternative employment, and attempting to press for reasons why I felt I could not work, before he even asked me about aspects of my health conditions and treatment.

4. I was at no time during the assessment and examination by Dr Xxxxxxx ever asked about what could or should be done to assist me to plan for a return to work. There was no idea that I could have had that he would decide to complete answers (without seeking my input) to questions 17 to 21 on the assessment/report form.

5. Although Dr Xxxxxxx did appear to request a ‘Host Doctor/Usual Practitioner Report’ from my GP, Dr Txxxxxx, it does not have happened in the prescribed form, as my own doctor also only felt prompted to respond by way of an ordinary email letter. Regrettably Dr Txxxxxx’s report contained a mistake referring to me seeking legal aid while facing a charge for an alleged “assault” (wrong information apparently passed on by XXXX counsellor), which never happened, but otherwise it mentioned relevant details re my long standing alcoholism, relapses and need for intensive counselling at XXXX. He mentions depression and XXX as conditions/ disabilities.

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

 

Yours sincerely,

 

Xxxxxxxx Xxxxxxx

 
 

P.S.:

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

 

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

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

 

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

HDC, Complaint, C12HDCxxxxx, complainant own doctor WINZ med. cert., anon, 22.04.10

HDC, Complaint, C12HDCxxxxx, complainant, own doctor WINZ disab. cert., anon, 17.06.10

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 
 

PART 3 – THE FIRST RESPONSE AND DECISION BY THE HDC

 

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

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

 

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

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

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

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

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

 

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

 

Dear Xxxxxxxx

 

Complaint: Dr Dxxxx Xxxxxxx at Xxxxxxxx Health Centre

 

Our ref: C12HDCxxxxx

 

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

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

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

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

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

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

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

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

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

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

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

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

Thank you for bringing your concerns to our attention.

 

Yours sincerely

 

Ms Theo Baker
Deputy Health and Disability Commissioner

 

cc: Dr Xxxxxxx

 
 

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

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

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

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

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

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

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

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

Comments:

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

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

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

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

 
 

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

 

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

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

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

 

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

 

Xxxxxxx Xxxxxx
XXXXX x
xx Xxxxxxxxxx Street
Xxxxxxxx
Auckland 1xxx

NHI: XXXxxxx
Phone: 09 xxx xxxx

 

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

26 April 2013

 

Attention: The Health and Disability Commissioner

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

 

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

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

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

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

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

I do particularly take issue with the following points:

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

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

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

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

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

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

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

Detailed arguments re the issues raised above:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And section 54B of the same Act states this:

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

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

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

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

Final comments, conclusions and expectations:

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

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

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

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

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

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

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

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

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

Yours thankfully and sincerely

 

Xxxxxxx Xxxxxxx

 

P.S.:

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

 

Attachments to email sent with this letter:

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

 

RE: ATTACHMENTS

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

COMMENTS:

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

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

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

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

 
 

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

 

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

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

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

 

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

Xxxxxxx Xxxxxxx
Xxxx x
Xx Xxxxxxxxx Street
Xxxxxxxxx
Auckland 1xxx

NHI: XXXxxxx
Phone: 09 xxx xxxx

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

03 June 2013

Attention: The Health and Disability Commissioner

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

Dear Madam / dear Sir,

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

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

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

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

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

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

Yours sincerely and thankfully

 

Xxxxxxx Xxxxxxx

 

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

 
 

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

 

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

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

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

“Your request”

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

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

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

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

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

Yours sincerely

Georgina Rood
Legal Advisor

 

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

 
 

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

 

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

 

“Dear …….

 

Complaint: Dr Dxxxx Xxxxxxx

Our ref.: C12HDCxxxxx

 

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

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

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

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

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

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

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

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

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

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

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

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

 

Yours sincerely

Katie Elkin

Associate Commissioner
Legal and Strategic Relations

 

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

 

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

 

COMMENTS:

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

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

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

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

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

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

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

 
 

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

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

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

Xxxxxxx Xxxxxx
Xxxx xx
Xx Xxxxxxxxxx Street
Xxxxxxxxx
Auckland 1xxx

NHI: XXXxxxx
Phone: 09 xxx xxxx

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

22 September 2013

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

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

Dear Health and Disability Commissioner, dear Katie Elkin

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

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

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

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

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

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

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

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

With thanks for your acknowledgment.

Yours sincerely

Xxxxxxxx Xxxxxx

 

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

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

 
 

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

 

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

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

 

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

Xxxxxxx Xxxxxxx
Xxxx xx
XX Xxxxxxxxx Street
Xxxxxxxxx
Auckland 1xxx

 

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

07 October 2013

Attention: The Health and Disability Commissioner

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

Dear Madam / dear Sir,

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

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

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

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

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

Yours sincerely and thankfully

Xxxxxxx Xxxxxxx

 

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

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

 
 

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

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

 

“Dear Mr Xxxxxxxx

Complaint: Dr Dxxxx Xxxxxxx
Our ref: C12HDC0xxxx

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yours sincerely

Georgina Rood
Legal Advisor”

 

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

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

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

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

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

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

 

COMMENTS:

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

 
 

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

 

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

 

Dear …..

 

Complaint: Dr Dxxxx Xxxxxxx
Our ref: C12HDCxxxxx

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

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

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

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

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

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

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

Katie Elkin

Associate Commissioner
Legal and Strategic Relations

 

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

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

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

 

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

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

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

 
 

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Marcus

 

Updated on 11 October 2015

 
 

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

‘Non-treating doctors performing medical assessments of patients for third parties’ (2010)

Click to access Non-treating-doctors.pdf

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

 
 

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

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

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

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

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

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

 

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

 

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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 ‘Annua