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:
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!
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:
Health and Disability Commissioner: Can we trust in HDC independence?
And some will also have read our post on ‘Designated Doctors’:
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 1 – Consider the health and well being of the patient to be your first priority.
Principle 2 – Respect the rights, autonomy and freedom of choice of the patient.
Principle 4 – Practise the science and art of medicine to the best of your ability with moral integrity, compassion and respect for human dignity.
Principle 8 – Honour the profession, including its traditions, values, and its principles, in the ways that best serve the interests of the patient.
Principle 9 – Recognise your own limitations and the special skills of others in the diagnosis, prevention and treatment of disease.
Principle 12 – Accept 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:
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.
MSD ARE PLANNING TO WIDEN THE SCOPE FOR WHO CAN SIGN WORK CAPACITY MEDICAL CERTIFICATES
Posted by nzsocialjusticeblog2013 in Uncategorized on 10/08/2015
MSD ARE PLANNING TO WIDEN THE SCOPE FOR WHO CAN SIGN WORK CAPACITY MEDICAL CERTIFICATES – MSD AND WINZ APPEAR TO BE ATTEMPTING TO MAKE NEW CHANGES TO MEDICAL CERTIFICATION
Without many in the public being aware of it, there are again further attempts being made, to change the medical assessment and certification approach in New Zealand, by following and further advancing ideas already tried and implemented in the UK. We have not yet got a “provider” like ATOS or Maximus here, but the way things are gradually moving ahead, I would not rule out that such a large outsourced assessor may also be introduced here at a later stage, together with a “test” similar to the discredited ‘Work Capability Assessment’ they have in the UK.
It certainly appears so, that our infamous Dr David Bratt, Principal Health Advisor for Work and Income NZ (WINZ), part of the Ministry of Social Development (MSD), had been commissioned to seek submissions from certain stake-holder parties, to get their views on changes MSD wish to make, in regards to who can be authorised to sign their so-called ‘Work Capacity Medical Certificates’ WCMCs). As if the draconian welfare reforms pushed through from 2010 to 2013, which also introduced work capability assessments for sick, injured and disabled in New Zealand, have not been enough. They did already make some significant changes to the medical certificates WINZ expects from general and some other medical practitioners (mostly GPs and their listed ‘Designated Doctors’) in 2013, expecting doctors to provide more information on patient’s capabilities to do some “suitable” work, and also by clarifying health conditions, and avoiding to sign persons off as unable to work too soon.
Now the talk is of proper “Fit Notes”, rather than “Sick Notes”, which sound like an attempt to bring the local system more in line with the UK certification regime, perhaps with further amendments or “tweaks”. That is at least what a submission from the ‘Royal New Zealand College of General Practitioners‘ (RNZGP) from 18 February 2015 seems to reveal, across which we stumbled very recently.
Here is the PDF containing the 8 page submission, which can be freely downloaded online:
Click to access Submission-Widening-who-can-sign-Work-Capacity-Medical-Certificates.pdf
Update, 10 Aug. 2016: Due to website changes you need to use the following link, as the above one is no longer active and results in an error message:
https://rnzcgp1.sharepoint.com/Website_documents/_layouts/15/guestaccess.aspx?guestaccesstoken=xI0rniKjdNvJqM0P%2fnQ65tn996mCM%2fWuC4%2fkt0ycJHI%3d&docid=0199b3ad9ec5c43129e230eaf87309120
We can note that the RNZCGP expresses at least some concerns about what Dr Bratt and his upper level “bosses” at the MSD seem to be planning! But even the RNZCGP seems happy to consider “good work” as “beneficial” to persons’ health, having followed the recommendations by the Australasian Faculty of Occupational and Environmental Medicine (AFOEM), being part of the Royal Australasian College of Physicians. As readers here may know, it was the then President Elect Dr David Beaumont (former ATOS staff member) and the invited UK “expert” Professor Mansel Aylward, with some assistance by Dame Carol Black and also “researchers” at the former ‘UNUM Provident Centre for Psychosocial and Disability Research’ in Cardiff, Wales, who paved the way for this new approach, with the “position paper” about the “Health Benefits of Work”.
With some interest and great concern did we also take note of the introduction of a new Bill into Parliament, not long ago, in the form of a so-called ‘Health Practitioners (Replacement of Statutory References to Medical Practitioners) Bill‘. The Ministry of Health has this information available on it online:
On the Ministry website it says:
“The Health Practitioners (Replacement of Statutory References to Medical Practitioners) Bill is to amend seven Acts to increase the range of health practitioners authorised to undertake functions under those Acts by changing the current references to medical practitioners to references to health practitioners. This will increase statutory flexibility and improve consumer access to the skills of health practitioners who are qualified to provide services.”
“Regulatory impact statements”
“The background documents for removing barriers to workforce innovation are provided here. There are two Regulatory Impact Statements (RISs) which concern the Health Practitioners (Replacement of Statutory References to Medical Practitioners) Bill. One RIS accompanied the 2011 Cabinet Paper and the other RIS accompanied the 2013 Cabinet Paper.”
“Currently the legislation sets out functions to be carried out by medical practitioners. The original intent of these statutory measures was to protect public safety by ensuring that only medical practitioners (doctors) with the required knowledge and skills were permitted to perform certain tasks. However, over time the training of health practitioners has changed. New technologies and treatment have been developed and the health workforce has adapted and diversified. Many health professional groups are now capable of performing tasks that were previously solely the domain of medical practitioners, such as taking blood pressure.”
“Many health professions are regulated by the Health Practitioners Competence Assurance Act 2003. The Health Practitioners (Replacement of Statutory References to Medical Practitioners) Bill takes account of responsible authorities established under the Health Practitioners Competence Assurance Act, to govern each profession and to establish scopes of practice setting out which activities each class of practitioners is competent to carry out under this Bill.”
“The amended Acts will enable health practitioners with the required competencies and knowledge to lawfully perform certain statutory responsibilities such as participating in claimants’ individual rehabilitation plans, issuing certificates of proof of illness or injury, providing ongoing health care, arranging medical examinations of children or young people, and taking blood specimens from road users. The amendments will make it easier for the public to access the statutory services from health practitioners and will facilitate innovative and efficient practice by practitioners.”
There is a range of Cabinet Papers and so forth downloadable from the website.
Here is a link to the page on the NZ Parliament’s website, where more information can be found:
http://www.parliament.nz/en-nz/pb/legislation/bills/00DBHOH_BILL63296_1/health-practitioners-replacement-of-statutory-references
Here is a copy of the Bill on ‘New Zealand Legislation’:
http://legislation.govt.nz/bill/government/2015/0036/latest/DLM6514118.html?src=qs
While these new changes may be welcome by some, and while they may seem rather limited at this stage, they appear to be preparing the ground for more changes to come. Hence the proposed Bill raises some important questions and concerns. Since we see that MSD are keen to have more medical and health professionals authorised to sign medical or ‘Work Capacity Medical Certificates’, I would be extremely concerned, as we know what Dr Bratt stands for, having in a number of his now well known “presentations” likened “benefit dependence” to “drug dependence”. He has fully signed up to the ideas and approaches by such UK “experts” like Professor Mansel Aylward and others – many from the controversial ‘Centre for Psychosocial and Disability Research’, formerly co-funded by UNUM Provident, in Cardiff, Wales, in the UK.
I would strongly advise readers to further read up on and study what all this may mean, as we could indeed soon see a further blurring of the lines, in regards to who may in future be allowed to sign our medical or ‘Work Capacity Medical Certificates’, likely to be “Fit Notes” or “Work Fitness Notes” of whatever types, than what we have known so far. It just appears so that the new agenda is being pushed further, to attempt and declare yet more persons with serious and permanent sickness, with impairments and disabilities of whatever kind, “fit” for work, so they can throw more off benefits and also off ACC claims support.
Marc
(Note: A similar post has also been published via ACC Forum)
Some other posts of interest, that relate to this topic:
MEDICAL AND WORK CAPABILITY ASSESSMENTS – BASED ON THE CONTROVERSIAL BIO PSYCHO-SOCIAL MODEL
DESIGNATED DOCTORS – USED BY WORK AND INCOME, some also used by ACC: The truth about them
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part A
(there are further parts to the work ability assessment post!)
‘The Health and Disability Panel’ and its hand-picked Members
ADVICE TO WINZ BENEFICIARIES FACING MEDICAL EXAMINATIONS AND WORK ABILITY ASSESSMENTS
MSD AND DR DAVID BRATT PRESENT MISLEADING “EVIDENCE”, CLAIMING “WORKLESSNESS” CAUSES POOR HEALTH
Posted by nzsocialjusticeblog2013 in MSD - Official Information Act releases, MSD Policy and Processes, WINZ and MSD in the Media on 09/08/2015
THE MINISTRY OF SOCIAL DEVELOPMENT (MSD) AND DR DAVID BRATT PRESENT MISLEADING “EVIDENCE”, CLAIMING “WORKLESSNESS” CAUSES POOR HEALTH
Medical scientific evidence is at best inconclusive, on the supposed “health benefits” of open employment
CONTENTS:
A) Introduction
B) Welfare reform: Progressive changes to work capability criteria and expectations
C) O.I.A. request for medical scientific evidence on harm to health through “worklessness”, and on MSD’s Health Advisor’s claims in presentations
D) MSD’s O.I.A. responses – failing to deliver convincing evidence
E) MSD’s repeated reluctance to provide official information – an analysis and interpretation of received information
F) A new issue with Dr David Bratt’s deletion of all email correspondence
G) Final conclusions
A) INTRODUCTION
Since taking over as the new government in 2008, following the Fifth Labour Government, the New Zealand National Party has during three terms in government brought about continued, very substantial and somewhat draconian reforms to the social security system in New Zealand. These were the most profound changes to the welfare system that had been made since a previous National government’s radical social policy changes from 1990 onwards, accompanied by the infamous “Mother of All Budgets” in the year 1991. Under the then Finance Minister Ruth Richardson and Social Welfare Minister Jenny Shipley, severe cuts were made to benefits. These measures were followed by imposing stricter eligibility rules and longer stand down periods for benefits, and also radical changes to labour laws with the introduction of the Employment Contracts Act. In 1996/97 the Fourth National Government introduced some further reforms, which were though partly reversed again by a Fifth Labour Government from 1999 onwards. While during the years up to the mid 1980s most welfare reforms included further improvements for those dependent on benefit support, like more generous benefit payments and sundry other support, the changes brought in under National from 1990 to 1998 cut back on social security spending. The intention was to provide “more tightly targeted” welfare support.
The Fifth Labour Government did from 1999 up to 2007/08 bring in other new social welfare changes taking social policy into a new direction. That Labour led government did bring in a new approach to social security, by re-focusing on the concept of “social development” to be integrated with economic development. Apart from some improvements in the years 1999 to 2004, that government introduced new, additional expectations and stricter obligations for those claiming benefits – also for single parents with dependent children and some with sickness and disability. A new policy approach, that was to be gradually introduced, was designed to encourage parents with dependent children and also sick and disabled back into work. It followed some selected reform approaches tried in the United Kingdom (U.K.) and other jurisdictions.
But the latest major changes to the social security system took effect from 2010 to 2013 under the recent and current Fifth National Government. These were the most profound ones since the introduction of the former ‘Domestic Purposes Benefit’ in 1973 and the severe benefit cuts in 1991. Like Labour, National looked at the UK, to adopt new approaches. Some of these more recent social policy changes that were introduced in New Zealand under the so-called ‘Future Focus’ package, and after that also with the ‘Social Security (Benefit Categories and Work Focus) Amendment Act 2013’, were firmly based on radically different, new approaches adopted from the United Kingdom. The U.K. has itself experienced a gradual and wider range of reforms in the social security area, going back as far as to the governments led by former Prime Minister Margaret Thatcher and John Major. Reforms continued there under Labour governments led by Tony Blair and Gordon Brown, and have over recent years been accelerated yet again under the Coalition government under Conservative Party leader and Prime Minister David Cameron. Many of these reforms from the late 1990s and the first decade of the 2000s included a gradual change in the way persons on benefits granted on grounds of sickness, injury and incapacity (resulting in disability) are being assessed for work capability.
New Zealand governments tend to “learn” from – and follow – a fair few systemic and legislative changes that are first made in the U.K., and integrate these into their own policy framework, and then bring in new laws or amend legislation here. New Zealanders, particularly those with sickness, injury and forms of incapacity, who may at some time in their lives become dependent on social security benefit support, should be very concerned about the changes that have been adopted from the U.K.. This is, because apparently much – if not most – research, that was relied on when introducing new assessment methods and a more forceful work expectation approach as part of the new welfare policy now in place here in New Zealand, comes from just one major research centre in Great Britain, and some “expert” directly or indirectly linked to it.
This is the so-called ‘Centre for Psychosocial and Disability Research’, formerly known as the ‘UnumProvident Centre for Psychosocial and Disability Research’, as it was for years also funded by the insurance company UNUM. Even more recently it has been renamed yet again, and is called the ‘Centre for Psychosocial Research, Occupational and Physician Health (PROPH)’. The Director of that Centre, a Professor Mansel Aylward, did for many years collaborate with UNUM, already when employed as Chief Medical Officer for the Department of Work and Pensions (DWP) in the U.K.. He played a significant role in developing new strategies and approaches in assessing work capability, and he was also instrumental in creating the predecessor for what is now known as the ‘Work Capability Assessment’ (WCA) used in the U.K.. As the former Chief Medical Officer for the ‘Department of Social Security’ (DSS, to become the DWP in 2001) Dr Aylward did in cooperation with UnumProvident’s former Vice President John LoCascio initially devise the ‘All Work Test’ that was recommended to and then used by the DSS for assessing sick and disabled for their work capability. That test was later changed a bit to become the Personal Capability Assessment (PCA), which was changed again to become the WCA. The new tests were introduced to replace the sole reliance on a person’s own general practitioner’s diagnosis and assessment that was used until 1995. In the U.K. the former ‘Invalidity Benefit’ was in 1995 replaced by the ‘Incapacity Benefit’, and the PCA was also used after then. The then ‘New Labour’ government did in 2007 or 2008 introduce the new ‘Employment and Support Allowance’ (ESA), for which the WCA was the new used assessment.
Much of the supposed “research” and “findings” that were used as the scientific basis and justification for assessing many sick, injured and incapacitated persons as “fit for work”, comes from researchers and advisors such as Prof. Aylward, and a small number of his colleagues, who are directly or indirectly linked to the mentioned Centre in Wales. They base their research and recommendations on a rather selectively interpreted form of the “bio psycho social model” for diagnosing, assessing and treating sickness and incapacity. Dr Aylward has been regarded by U.K. governments as an “expert” in his field, which must though be viewed as being so, partly due to the usefulness of his findings, in putting into place higher thresholds for qualifying for benefits on health grounds and disability.
Before and while the recent New Zealand welfare reforms were being discussed, formulated and proposed as new policy for the Department of Work and Income (WINZ, as part of MSD), Prof. Mansel Aylward was besides of a selected few other “experts” invited to both Australia and New Zealand, to “inform” leading medical professional organisations and governments of his new “findings” on the “health benefits of work”. The Ministry of Social Development’s newly established Principal Health Advisor, by the name of Dr David Bratt, did at around the same time fully adopt these new ideas, “findings” and approaches from the U.K.. He has since at least 2010 actively been promoting them, through a number of presentations and speeches he has given to medical professional groups and organisations. He has for instance repeatedly been speaking to general practitioner (GP) conferences and also to medical trainers and trainees, to present his rather selectively chosen information, that is supposed to support the findings by researchers like Aylward et al. Dr Bratt has as Principal Health Advisor during at least 2012 and 2013 also had meetings with Dr Aylward and others, and facilitated their participation and input into a MSD selected ‘Health and Disability Panel’ that advised MSD and the government on welfare reform involving health and disability aspects.
Since the introduction of a new ‘Work Capacity Medical Certificate’ by MSD and Work and Income, and new assessment measures based on the mentioned “research”, few appear to have raised serious questions about the validity and robustness of certain used statistics and supposed medical scientific “research” that MSD now rely on. Hence we saw a need to put questions to MSD about this, and an Official Information Act (O.I.A.) request was filed by a trusted person, who was himself very negatively affected by the rather controversial new approach. MSD was asked to present relevant sources and evidence to back up the partly bizarre and bold claims made by Dr Bratt and MSD, particularly in Dr Bratt’s various presentations, which have been delivered to gatherings of medical practitioners and rehabilitation professionals. Also is Dr Bratt responsible to “train” the ‘Designated Doctors’ that MSD and WINZ use for providing supposedly “independent” second opinions on beneficiaries’ health and disability. Dr Bratt has repeated some of his quotations and claims in a number of interviews to the mainstream media, who published his “evidence” in some reports.
This post reveals how limited, inconclusive, poor and at least in part very unconvincing many of the sources and findings are, that Dr Bratt has been using, when supposedly “informing” his target groups about the “evidence”, reasons, purposes and justifications of the new assessment approaches now in place. As MSD appeared to be very reluctant to present much information at all, it became even necessary to make a complaint to the Office of the Ombudsmen, to try and obtain remaining asked for information, which was only forthcoming many months later, again only in small bits. Regrettably further requests to the Ombudsman to hold MSD to account for not providing much of the requested information were without success, and a separate post may follow at a later stage, which exposes, how ineffective even the Office of Ombudsmen is, in holding key government departments and personnel to account for their decisions and actions. Most disturbing was also the discovery, that Dr Bratt had apparently deleted “all” of his emails and possibly other records covering his correspondence and contacts with Professor Aylward, and others, and truly bizarre explanations were given for this. That separate matter of concern has been the reason for yet another complaint to the Chief Ombudsman to look into this, as it appears there may be a breach against the Public Records Act 2005.
For some revealing information about Prof. Aylward and his research, read the following:
Vox Political, UK website, on Prof. Aylward, his role in introducing work tests, 18 January 2013:
Unum, Atos, the DWP and the WCA; Who gets the blame for the biopsychosocial
http://voxpoliticalonline.com/tag/personal-capability-assessment/
Black Triangle Campaign with one of their posts on Prof. Aylward, from 09 Sept. 2012:
Some other links to information on Prof. Aylward and the yet again renamed “Cardiff Centre”:
http://sites.cardiff.ac.uk/experts/professor-sir-mansel-aylward-cb-dsc-ffpm-ffom-ffph-frcp/
http://medicine.cf.ac.uk/primary-care-public-health/research/proph/
http://medicine.cardiff.ac.uk/contact/cpdr/
(links worked 18.09.16):
A link to one of Prof. Aylward’s presentations ‘Worklessness and Health: A Symposium’:
Click to access media_210440_en.pdf
The AFOEM position statement ‘The Health Benefits of Work’, introduced and promoted by Mansel Aylward in 2010, and updated over recent years. It is now found under another link on the Royal Australasian College of Physicians (RACP) website, which is used to justify the new approaches in work ability assessments:
This is the new web-page of the RACP College, with further information (new links as on 18 Sept. 2016):
https://www.racp.edu.au/
https://www.racp.edu.au/advocacy/division-faculty-and-chapter-priorities/faculty-of-occupational-environmental-medicine
https://www.racp.edu.au/advocacy/division-faculty-and-chapter-priorities/faculty-of-rehabilitation-medicine
(they and other vested interest parties have over time been changing their websites and appear to have restricted access to information formerly made available, as they seem concerned about revelations made by some advocates! Much formerly available information appears to have been deleted!)
‘Working for a healthier tomorrow’, ‘Dame Carol Black’s Review of the health of Britain’s working age population’, TSO, London, 17 March 2008, UK Government:
Click to access hwwb-working-for-a-healthier-tomorrow.pdf
B) WELFARE REFORM: PROGRESSIVE CHANGES TO WORK CAPABILITY CRITERIA AND EXPECTATIONS
Under the last New Zealand Labour led government a change of approach was taken towards more pro-actively assisting not only single parents on the ‘Domestic Purposes Benefit’ and ‘Widows Benefit’ (DPB and WB) back into work, but also towards “encouraging” persons with longer term sickness and disability – being dependent on social security benefits – into paid work. A ‘Sickness and Invalid’s Benefit Strategy’ was introduced by the Ministry of Social Development (MSD) in 2004.
A policy package called ‘Working New Zealand’ was introduced and then implemented through changes to the Social Security Act 1964. The package was based on new approaches that had been adopted and introduced in the U.K., which was based on the assumption that “work in paid employment offers the best opportunity for people to achieve social and economic well-being” and “the priority for people of working age should be to find and retain work”.
As part of an over-arching ‘Working for New Zealand’ package, ‘Working for Families’ (WFF, introduced 2004 and implemented from 2005) offered incentives for persons with children and on low income to resume or stay in work, in the form of WFF tax credits. Under ‘Working New Zealand’ there were though few or no direct financial incentives offered to persons remaining dependent on benefits – with or without dependent children. They were rather facing disincentives and penalties if they would not make efforts to prepare for resuming work or to participate in training. One controversial measure was taken in 2005 to phase out the special hardship assistance called ‘Special Benefit’ from 2006, which was replaced by a new benefit component, called ‘Temporary Additional Support’ (TAS). That new supplement was not only capped at about 30 percent of the base benefit rate, it offered Work and Income (WINZ) case managers less flexibility and did leave beneficiaries in hardship worse off than if they were still able to claim the ‘Special Benefit’. The Fifth Labour Government ignored that increases in claims for the former ‘Special Benefit’ were driven by the inadequacy of core benefits, which made it increasingly difficult for families to survive on a core benefit alone.
Under a ‘Working New Zealand: Work-Focused Support’ package a new approach with new requirements and obligations for beneficiaries was brought in. The stated aim was to “increase opportunities for people to participate in the labour market, where work is an appropriate outcome“.
Not dissimilar to comments we have heard from ministers under the present National led government, the then Minister of Social Development and Employment, David Benson-Pope commented: „If we take no further action, assuming that current trends and practices continue, it has been estimated that the cost of supporting the existing population of beneficiaries (as at June 2005) over the lifetime of their claims on Domestic Purposes Benefit, Sickness Benefit and Invalid’s Benefit represents a future liability of $25 billion to the State”.
The new work-focused package was intended to ideologically reframe the social security system around a focus on citizens’ obligations to work – with no corresponding responsibility by the state to provide decent jobs and adequate wages. It was not so much based on ‘evidence’, but following similar efforts by governments in the U.K., the intention was to simply increase work expectations, and rather send signals to potential future benefit claimants, and to the public at large, that work has priority to support in the form of benefits. It was rather about saving welfare costs in the future.
Then Minister David Benson-Pope was quoted with the statement: “The ability to work is often constrained by factors that a person may have little control over, such as the availability of childcare or mental health support services that are necessary for a person to work. Taking into account the context of a person’s daily life requires acknowledgement of and support to address these barriers if employment is to be a realistic outcome”.
Trials of the new service delivery model and the integrated “work focused” approach were conducted from mid 2005 onwards at 12 Work and Income service centres and two contact centres. Part of the new approach were “pre assessment processes”, such as putting clients into certain priority streams like ‘Retention in Work’, ‘Early Response (Rapid Return to Work)’, ‘Work-Focused (Able to Work but not Immediately)’ and ‘Work-Unlikely’ (e.g. people with terminal cancer) categories. Seminars were offered and work brokerage services were expanded. Initially only new applicants were offered and could voluntarily attend certain seminars. But from September 2006 also existing beneficiaries would gradually be approached and asked to participate in case management and employment assistance efforts. Those in the ‘Work-Unlikely’ stream were not offered assistance to employment, but they could access services if they expressed an interest to participate.
From 01 July 2005 Invalid’s Benefit recipients, who had previously only been able to work no more than 15 hours per week before they lost entitlement to the benefit, could with the agreement of their Case Manager, work 15 hours or more per week for up to six months without losing their benefit of entitlement. This was offered as an incentive for some persons with severe and long term sickness and disability, to trial work. Additional employment services were introduced for those suffering illness and/or disability, involving employment coordinators, vocational assessment tools and some targeted health interventions. These service additions were intended to reduce the time persons with ill health and disability may stay on primary income support.
Through the ‘Social Security Amendment Bill 2006’ three of the trialled streams were introduced in the form of ‘Work Support’, ‘Work Support Development’ and ‘Community Support’ (the latter for DPB and IB recipients). While participation in the new service model and up-front work-focuses services prior to benefit receipt was still voluntary during the mentioned trials (which most that were approached accepted), the new Bill provided for compulsory participation in certain services. From September 2007 on, it would become mandatory for unemployed persons applying for a benefit to participate in “pre-benefit activities”. There were also additional requirements introduced for persons being work-tested. Planning and activity requirements were brought in for sickness and invalid’s beneficiaries, and for spouses or partners of beneficiaries with a dependent child under 6. Sick and disabled were subjected to the same planning and activity requirements and sanctions as DPB and WB recipients. Failure to meet requirements would result in benefit cuts. The new Bill clearly indicated that sickness or disability would no longer be considered a good reason to be out of work, particularly given the enhanced employment assistance for sickness and invalid’s beneficiaries provided during the trials. While also offering some other, perhaps minor improvements, the Bill removed much discretion, imposed more regulation and introduced a greater degree of coercion for many dependent on social security benefits.
The last Labour government also had plans to move towards a single core benefit, but given the continued discussion and lack of agreement as to how to re-design the system to facilitate this, and the fact that Labour lost the general election in 2008, this plan was never proceeded with.
Along with the changes that resulted from the passing of the Social Security Amendment Act 2007, which enacted new provisions proposed with the Social Security Amendment Bill 2006, MSD created senior advisory positions in the form of Principal Health Advisor, Principal Disability Advisor, and a number of subordinate advisory positions in the form of Regional Health Advisor and Regional Disability Advisor. Also were further supportive positions of Health and Disability Coordinator created. These positions were appointed by the Chief Executive of MSD under section 41 of the State Sector Act 1988. The mentioned Principal Advisors were commissioned with offering both “strategic leadership” and “advice” to Work and Income staff, particularly the Regional Health and Disability Teams, on health and disability matters. They were tasked also with giving medical and expert advice on individual cases, where the subordinate Advisors may need further guidance. Also was and still is their role to liaise with health professionals like general practitioners (GPs), with Work and Income’s “Designated Doctors” and with health and disability service agencies and providers in the community.
Since 2007 the same originally appointed Advisors have been active in their roles, and this includes the more prominent Principal Health Advisor is Dr David Bratt, who formerly worked as an advisor for the Capital and Coast District Health Board, and who is himself a qualified GP. In 2008 MSD conducted a “designated doctor training program” through meetings held across the country, where Dr Bratt and the former Ministry Advisor Dr Rankin informed Work and Income’s contracted doctors of the Ministry’s processes and expectations in regards to medical examinations and certification done on WINZ clients with health conditions and disability. Such training continues to this day, but is no longer held through group meetings, but is rather offered less formally by way of ongoing consultations on changes to processes, and at times on a case by case basis.
The whole new medical and work capability assessment approach appears to lean heavily on what certain “experts”, mostly from the ‘Centre for Psychosocial and Disability Research’ (formerly “sponsored” by UNUM Provident insurance) based at Cardiff University in Wales, U.K. have been presenting as “research findings” over recent years. The Director of that Centre, Professor Mansel Aylward, who was once also Chief Medical Officer for the UK’s Department for Work and Pensions (DWP), has played a major role, and he was also behind a controversial work capacity test that preceded the now still used ‘Work Capability Assessment’ (WCA), which has also been heavily criticised by disabled, their representative organisations, by advocacy groups and also health professional representatives in the U.K., for failing especially persons with mental health conditions.
There have been further changes to the social security system in New Zealand, which culminated in a major reform drive under the former and present National led governments. More work test requirements, conditions and harsher sanctions were introduced in 2010 for sole parents with dependent children, and also for persons on the former sickness benefit under the “Future Focus” policy. Effective from July 2013 there were radical changes made to the benefit categories, merging seven former ones into only three main benefit types, and yet more expectations and requirements were introduced for the same kinds of groups of beneficiaries, with yet higher expectations for sick and disabled to also prepare and look for work. Advisors from the U.K. were consulted, and new approaches tried there (with rather disastrous results) were in part adopted here, so as to now consider persons with health conditions, injury and disability as also in most cases being “fit” for certain, “suitable” work. This approach is based on a change of criteria for assessing persons’ sickness, injuries, impairments and capability to work. Like in the U.K. the focus is now rather on what persons can hypothetically do, rather than what they cannot do (physically and mentally).
Throughout the continued reforms, there has been a lack of transparency in regards to how medical and work capability assessments are now being conducted, what solid medical scientific advice is being relied on, to apply a more stringent approach, where even persons with serious mental health conditions are increasingly approached, to not go or stay on the now introduced ‘Jobseeker Support – Deferred’ benefit, and rather try and find and stay in work. There has been anecdotal evidence of some of Work and Income’s “Designated Doctors” making bizarre, questionable recommendations, which are at times in stark contrast to what a client’s own doctor may have diagnosed. In some cases bias has been suspected, and like in the UK, more people raise questions about the justification and appropriateness of the new, stringent approach with putting higher expectations on sick, injured and disabled to work in employment on the competitive, stressful, open job market.
Since at least 2010 Dr Bratt has as Principal Health Advisor given a number of presentations and speeches to meetings of health practitioners and other health professional organisations, in which he has made some bizarre and bold comments, references and statements. Repeatedly he likened “benefit dependence” to “drug dependence”, and his presentation (apparently backed by his colleague Anne Hawker) called ‘Ready, Steady, Crook – are we killing our patients with kindness?’, is a typical example of how heavily he appears to rely on selectively gathered statistical and other information.
This post will present information that had been sought from MSD, to offer explanations and medical scientific information, to support the unconvincing information Dr Bratt has regularly used in many of his presentations. Only two direct responses were delivered upon a request filed on 16 January 2014, and only limited further comments and explanations were obtained recently, with the rather “humble” assistance from Ombudsman Professor Ron Paterson.
For some useful information on welfare reforms it is also worth reading the following publications:
‘WORKING FOR NEW ZEALAND’: A Background Paper on Recent and Proposed Welfare Reforms in New Zealand, Louise Humpage, Public Policy Group, University of Auckland, March 2007
Click to access Humpage%20Welfare%20forum%20background%20paper%20Mar%2007.pdf
‘ESCAPING THE WELFARE MESS?’, Susan St John and Keith Rankin, Working Paper Nr 267, Revised December 2009:
Click to access WelfareMessrevised09.pdf
Other information of interest can be found in the following publications via links here:
‘Sickness and Invalid’s Benefits: New Developments and Continuing Challenges’, MSD website, plus link to relevant PDF with report by Neil Lunt, Social Policy Programme, Massey University, published in ‘Social Policy Journal of New Zealand’, Issue 27, March 2006:
Click to access 27-pages77-99.pdf
‘Understanding the Growth in Invalid’s Benefit Receipt in New Zealand’
By: Moira Wilson, Keith McLeod, Centre for Social Research and Evaluation, Ministry of Social Development, from ‘Social Policy Journal of New Zealand’, Issue 29, Nov. 2006:
Click to access 29-pages-127-145.pdf
‘Welfare in New Zealand’, Wikipedia:
https://en.wikipedia.org/wiki/Welfare_in_New_Zealand
‘Office for Disability Issues’, website:
http://www.odi.govt.nz/nzds/work-plans/2007-08/dpt-social-development.html
See:
“4) Work and Income” …
“2) Working New Zealand, Work Focused Support: Support and Services for People in Work Development Support and Community Support Service Streams project(t)”
OAG, Office of the Auditor General, website publication:
‘Part 2: The Working New Zealand: Work-Focused Support Programme’
http://www.oag.govt.nz/2009/social-development/part2.htm
OAG, Office of the Auditor General, website publication:
‘Part 3: Determining eligibility for sickness and invalids’ benefits’
http://www.oag.govt.nz/2009/social-development/part3.htm
‘Social Security Amendment Act 2007’ (changes introduced through the ‘Social Security Amendment Bill 2006’):
http://www.legislation.govt.nz/act/public/2007/0020/latest/DLM408545.html
‘Working for Families’, Wikipedia:
https://en.wikipedia.org/wiki/Working_for_Families
‘Left Further Behind 2011’, Chapter 6, ‘Working for Families’; a Child Poverty Action Group (C.P.A.G.) Monograph, M. Claire Dale, Mike O’Brien, Susan St John:
Click to access 2011%20Lfb%206%20%20St%20John%20Working%20for%20families.pdf
“Can the ‘In Work Tax Credit’ be justified as an in-work benefit?”, Susan St John and M Claire Dale, NZEA annual conference 2009:
Click to access PresentationEconomistconference.pdf
‘THE TEN MYTHS OF THE ‘IN WORK TAX CREDIT’, Susan St John, C.P.A.G.:
Click to access CPAG%2010%20MYTHS%20IWTC.pdf
Re: Appointments made by the Chief Executive of MSD – of a Principal Health Advisor, a Principal Disability Advisor and various Regional Health and Disability Advisors: See ‘State Sector Act 1988’
http://www.legislation.govt.nz/act/public/1988/0020/latest/whole.html#DLM5478489
Read section 41 for details on the power of the Chief Executive to delegate powers and/or functions, also to employees and advisors.
C) O.I.A. REQUEST FOR MEDICAL SCIENTIFIC EVIDENCE ON HARM TO HEALTH THROUGH “WORKLESSNESS”, AND ON MSD’S HEALTH ADVISOR’S CLAIMS IN PRESENTATIONS
Questions put to MSD in an O.I.A. request from 16 January 2014:
1. Information in the form of clear statistical evidence of Dr David Bratt’s claims in his presentation ‘Ready, Steady, Crook – Are we killing our patients with kindness?’ (presented in Christchurch, 2010), that 30 % of GP’s “had experienced a sense of threat and intimidation” (see page 32), which in context of the presentation appears to be coming from patients seeking medical certification for sicknesses and/or disabilities (for Work and Income benefit receipt).
As this appears to be based on a kind of survey, I request a copy of the authentic survey result report this information is based on. If the report is not held by the Ministry of Social Development or Work and Income, I do in any case ask for a clear reference to where that particular information is documented, held and can be found. I also ask for a transcript or copy of the original questions asked in that survey. I furthermore ask for information on whether this is information that relates to the whole practice time that GPs have had in their past lives, or whether it was based on experiences in annual or other time defined periods. I request your clarification, whether a distinction was made in the survey question(s) between a “sense of threat” and a “sense of intimidation”, and whether any particular details on the kinds of threats or intimidation were given. Furthermore I ask for information on the frequency of such experiences GPs may have had over defined periods.
2. Dr David Bratt has, in his capacity as the Principal Health Advisor for the Ministry of Social Development, regularly made presentations of the types just mentioned under ‘1.’ above, which was to GP conferences and other health professional meetings, which contained a range of apparently statistical data, for which the exact source has in some cases not been clearly given. Another such presentation is ‘Medical Certificates are Clinical Instruments Too’ (from 2012). He has repeatedly stated the above claims on presentations bearing logos and other details, showing that they are apparently Work and Income authorised.
On the pages 13, 20, 21 and 35 of ‘Ready, Steady, Crook’ Dr Bratt makes references and comments in which he likens or compares “benefit dependence” to “drug dependence”. I seek information from the Ministry of Social Development (MSD), whether it is the official position of MSD and Work and Income (WINZ) that benefit receipt is “addictive” like a “drug”, as suggested by Dr Bratt on page 35, where it reads: “the “benefit” – an addictive debilitating drug with significant adverse effects to both the patient and their family (whānau) – not dissimilar to smoking”. Dr Bratt also commented in an article in the “NZ Doctor” publication from 01 August 2012 that – quote: “Long term unemployment has been shown as bad as smoking 10 packets of cigarettes daily”. He continues: “As a drug, it would be an addictive, debilitating substance, he told the RNZCGP education convention”. If the Ministry shares the comments and views of Dr David Bratt, I ask for clear medical scientific evidence that this is the case, and I also ask for references to scientific reports proving this, preferably quoting information from such reports. It would assist if the Ministry could provide some consistent scientific evidence of this, from preferably a number of scientific reports and sources.
3. Further to the presentation ‘Ready, Steady, Crook’, on page 32 there is a range of other statistical data mentioned, which is also claimed to come from a “GP survey”, it includes claims that of GPs surveyed on (apparently related to medical certification and associated) pressures they faced, that about “71 felt it was a mechanism to provide income to the patient”, “55 % felt W&I staff created an expectation”, “40 % – because they believed there was no work available” and “31 % – felt W+I weren’t doing anything for the patient”.
In relation to those “results” or “answers” form GPs, I ask the following:
a) Which particular survey/s do these “results” come from, and what were the exact questions asked in relation to the data presented in that – and certain other presentations – by Dr David Bratt?
b) Which of any of those alleged “pressures”, if any, had contributed to a GP’s decision on whether or not to, or how to complete, a medical certificate for a patient dependent on, or intending to apply for a benefit from Work and Income?
c) Which of any of those alleged “pressures”, if any, had given the GPs questioned the ultimate motivation, to issue a medical certificate or not, or to make any other determination on the specific way of completing medical certification?
4. Also in the same presentation ‘Ready, Steady, Crook’ on page 23, and in certain other ones, Dr Bratt claims that according to both Australian and New Zealand studies there is a chance of it being only 70 percent likely that a person “ever” returns to work after 20 days off work, it being only 50 percent likely for a person to “ever” return to work after 45 days off work and it being only 35 percent likely for a person to “ever” return to work after 70 days off work.
Please supply copies of the authentic statistical evidence for this data to be correct and also current, and please provide the source information, or at least a clear reference to the report/s stating so, where records may not be kept by MSD or WINZ themselves. I also ask for clarification of whether the information in the mentioned presentation/s is relating to the chance to really “ever” return to any work, or whether it is rather referring to “ever” return to the same job that may have been held by a person until she/he got sick, injured, impaired and/or disabled, and was consequently forced to stop working due to that.
5. Please provide information on Dr David Bratt’s claim in a ‘NZ Doctor’ publication from 01 August 2012 (article by Lucy Ratcliffe), where he states: “A UK study found of the main obstacles for going to work, medical problems made up just 3 % of the list”. He has made similar claims in his various presentations. As the data appears rather unspecified and inconclusive, I request the clear scientific report data, and evidence, that this is the case. I seek information that Dr Bratt, MSD and/or WINZ hold on this study, and on the source of the report data. Please provide the information from the study that shows what exact questions to what study group of persons were asked, what detailed information was gathered under what criteria and scope. Does this apply to all working age persons simply going to work or trying to work, whether sick or not, of whom some suffer sickness, impairments and disability? Or was the studied group of persons actually made up of affected sick and disabled only? It is hard to believe that such a small percentage of sick and disabled on health related benefits are seeing their condition as an obstacle to work. This information is sought to clarify the claims made in the article and various presentations, as out of context information can easily misinform and mislead.
6. Dr David Bratt’s presentations list a fair amount of information, which he claims prove the harms of “worklessness”, and of being out of work (for sickness, injury or possibly other reasons). Please provide information that Dr David Bratt has as Principal Health Advisor presented in similar kinds of presentations, or in other forms of communications, about the harms that exist at workplaces, about certain harms caused by work, about certain types of work causing ill health or injury, and about insufficiently equipped and organised work places, or particular work practices, work duration, or any other aspects relating to work or employment, that may be causing harms to health and safety of workers. This is for the case Dr Bratt has such information, and that he has gathered, obtained and/or prepared such information for the Ministry of Social Development and/or Work and Income. It must be presumed, or at least be expected, that the Ministry is equally concerned about these issues, which beneficiaries referred into open or other employment may face.
7. Please provide information that Dr David Bratt as Principal Health Advisor may have gathered, obtained, prepared and presented, which gives details about the negative and harmful health effects of suffering from relative or general poverty, instead of simple “worklessness”, that people on benefits or in low paid work may face. There have been international studies on the effects of poverty, and how poverty does affect the health and well-being of adults and their children, irrespective of their employment status. I am interested to receive such information that Dr David Bratt has on file, that the MSD or Work and Income may have on file in their archives, that is being used to raise awareness on these matters, which are of serious concern, apart from concerns about employment of beneficiaries and their dependents.
8. I also request information that Dr Bratt may have gathered, obtained, prepared and presented, that states that the quality of health of a beneficiary, who suffers from sickness, illness, physical or mental impairment and disability, may rather much more depend on individual circumstances, and that some simple forms of physical activity or mental activity, other than work in the form of “open employment” (for paid income), may prove more beneficial than putting such vulnerable persons under any expectations or pressures to seek and obtain paid work on the open job market.
9. Please provide a list of the various “research” sources and reports that Dr David Bratt has used for obtaining information for his various presentations (of the types as mentioned above), and please state clearly, which ones were from professionals like Dr Gordon Waddell, Professor Dr Mansel Aylward and others who worked at (and in cooperation with) the ‘Centre for Psychosocial and Disability Research’, formerly funded by “Unum Provident” (a US and UK based disability and health insurance provider), at Cardiff University in the UK. It would perhaps assist to also get a percentage rate for the contents of data from the “researchers” at that Centre, which has been relied on and used for Dr Bratt’s presentations. There is concern amongst the public, that Professor M. Aylward and some colleagues have repeatedly attempted to claim, that a high number of persons suffering “moderate” mental health or musculo-skeletal conditions actually only suffer from alleged “illness belief”.
10. Please provide information on the times, dates, types of and purposes of contacts, meetings and communications (including correspondence) that Dr David Bratt had with –
a. Professor Dr Mansel Aylward (from the ‘Centre for Psychosocial and Disability Research’, Cardiff University),
b. Dr David Beaumont (formerly ATOS employee, from the UK, now ‘Pathways to Work’ director, and advisor to MSD, and formerly also to ACC), and
c. Dr Gordon Waddell (‘Centre for Psychosocial and Disability Research’) –
in the course of performing his duties, and also otherwise, while holding his position as Principal Health Advisor for MSD and Work and Income.
Dr David Bratt has in his capacity as the senior advisor for the Ministry of Social Development, on health conditions and related matters affecting Work and Income beneficiaries, regularly held speeches and presentations (as listed above). He has at such occasions been presenting PDF, PowerPoint or similar presentations, detailing aspects of the subject matters he would cover.
The above specified information is sought for reasons of providing public transparency and accountability, and assurance in Dr David Bratt’s professional competency and integrity as Principal Health Advisor for the Ministry, while being a qualified medical practitioner in a public service role. As he is commissioned with communicating to medical practitioners and other health professionals, the information that MSD and WINZ deem essential to present, in order to facilitate the effective co-operation between staff working for the Ministry and health professionals, there is a strong public interest that this information is made available.
The above requested specified information is sought to be made available under the Official Information Act 1982 within the specified time frame of 20 working days.
I kindly and respectfully ask that the information is made available by way of a sufficiently detailed written response, and by way of good quality, easily readable photo copies of original documents containing the relevant information. Otherwise it can also in part be made available by way of equally good quality computer generated printouts. If not available in hard copy form, a standard CD containing the corresponding, relevant documents and information in PDF, or similarly common, readable data format can be accepted.
Thank you for your acknowledgment and appreciated co-operation.
Yours sincerely
Xxxxxxxxx Xxxxxxxx
Sundry reference information on Dr David Bratt’s presentations – and of his comments quoted in media reports – can be found via the following links:
1) ‘Ready, Steady, Crook – Are we killing our patients with kindness?’
Click to access C1%201515%20Bratt-Hawker.pdf
(presentation by Dr D. Bratt and A. Hawker, for Work and Income, to GP conference in Christchurch, 2010, see pages 13, 20, 21 and 35 for comparisons to drug dependence)
2) ‘Medical Certificates are Clinical Instruments Too!’
(GP presentation by Dr D. Bratt, 2012, see pages 3, 16 and 33 for his likening of benefit dependence to “drug dependence”)
3) ‘Pressure – No Pressure’ (How to deal with “pushy” patients)
(PowerPoint presentation by Dr Bratt, downloadable from the web, again likening benefit dependence to “drug dependence” and presenting a lot of selectively gathered information)
4) ‘Shifting Your Primary Focus to Health and Capacity – A New Paradigm’
(Prof. Sir Mansel Aylward, Director Centre for Psychosocial and Disability Research, Cardiff University; Dr David Bratt, Principal Health Advisor, Ministry of Social Development; joint presentation at GP CME Presentation – June 2013; questioning “traditional” diagnosis on a medical model basis, and promoting the Aylward version of the “bio psycho-social model”, and even promoting ‘Long Acting Reversible Contraception’ to improve employ-ability of women, see page 45!!!)
5) ‘Harms lurk for benefit addicts’
(article in NZ Doctor magazine, by Lucy Ratcliffe, 01 August 2012, where Dr Bratt is again quoted with his preposterous claims about benefit dependence being like “drug dependence”, and that: “A UK study found of the main obstacles for going to work, medical problems made up just 3 per cent of the list.”)
try this link if the above does not work:
Dr D. Bratt, MSD, ‘Harm lurks for benefit addicts’, article, NZ Doctor, 01.08.12, scan, 18.08.2012
*****Please search online under the title of the article, if the link does not work!*****
6) See also: 1 PDF file containing the position description for Principal Disability Advisor (original from 2007), received with an earlier O.I.A. reply from MSD:
MSD, O.I.A. Request, Princ. Health Advisor, position description, highlighted points, Jan. 2007
7). See the anonymised letter containing the questions put to MSD on 16 Jan. 2014:
MSD, O.I.A. rqst, re Dr Bratt, presentations, contacts, anon. ltr w. questions, 16.01.14
8) See also the supposed “evidence based” position statement launched via the AFOEM from 2010 onwards, presented and promoted by Prof. Mansel Aylward, called ‘The Health Benefits of Work’, which is now found under another link on the Royal Australasian College of Physicians (RACP) website, which is used to justify the new approaches in work ability assessments:
This is the new web-page of the RACP College, with further information:
https://www.racp.edu.au/
https://www.racp.edu.au/advocacy/division-faculty-and-chapter-priorities/faculty-of-occupational-environmental-medicine
https://www.racp.edu.au/advocacy/division-faculty-and-chapter-priorities/faculty-of-rehabilitation-medicine
(they and some other vested interest parties have over time been changing their websites and restricted access to information formerly made available, as they appear concerned about revelations made by some advocates!)
D) MSD’s O.I.A. RESPONSES – FAILING TO DELIVER CONVINCING EVIDENCE
1. Response from 27 February 2014:
“27 FEB 2014”
“Dear XX XXXXXXXX”
“Thank you for your letter and email of 16 January 2014 requesting, under the Official Information Act 1982, detailed information regarding Dr Bratt’s presentation ‘Ready, Steady, Crook’ and his meetings with other health professionals.
Dr Bratt’s presentations are designed as interactive workshops with medical professionals. The slides are merely a prompt and do not provide the context of the discussions. There are no transcripts of these discussions.
Statistics in the presentation ‘Ready, Steady, Crook’
The majority of references which highlight the adverse effects of worklessness are readily available in the Position Paper “Realising the Health Benefits of Work” produced by the Australasian Faculty of Occupational and Environmental Medicine. A further reference list is available in the paper commissioned by the United Kingdom Department of Health and the Department for Work and Pensions by Dame Carol Black entitled “Working for a Healthier Tomorrow”.
The figures showing the likelihood of return to work are from the following papers:
● Campbell Research and Consulting. 2008/09 Australia + New Zealand Return to Work Monitor. Melbourne: The Heads of Workers Compensation Authorities; 2009
● RTW Trends in Australia and New Zealand. Dr Mary Wyatt, 2009 which is publicly available at http://www.rtwmatters.org/publications/all-jurisdictions-rtw-monitor-part-1/
● Johnson D, Fry T “Factors Affecting Return to Work after Injury: A study for the Victorian WorkCover Authority. Melbourne: Melbourne Institute of Applied Economic and Social Research; 2002.
Please find enclosed a copy of the Work and Income Medical Certificate Survey – 2010 and the results of that survey which featured in Dr Bratt’s presentation ‘Ready, Steady, Crook’.
Lucy Ratcliffe’s Article
With regards to Dr Bratt’s statement quoted by Lucy Ratcliffe – the figures were taken from a presentation by Sir Mansel Aylward to a representative group of medical professionals from various medical colleges in 2012. The study was independently undertaken by Cardiff University where recipients of a disability-related benefit were interviewed to help identify the key factors that prevented their return to the workforce.
Dr Bratt and Other Practitioners
Sir Mansel Aylward was invited to New Zealand by Sir Peter Gluckman, the Chief Science Advisor, to review the ‘Growing Up in New Zealand’ study. In June 2013 Sir Mansel Aylward returned to New Zealand to present his report into the study. During his visit to the Faculty of Occupational and Environmental Medicine Dr Bratt met with him to discuss the extensive work he has been involved with about the adverse health effects of worklessness. At the invitation of the New Zealand Medical Association Sir Mansel Aylward was a keynote speaker at the General Practitioner Conference and Medical Exhibition in Rotorua in June 2013 where he addressed over 900 General Practitioners. Prior and subsequent to this visit, Dr Bratt had numerous email and phone conversations with Sir Mansel Aylward to confirm the travel arrangements and conference details.
Dr David Beaumont is an occupational medicine physician who is the President-Elect of the Australasian Faculty of Occupational and Environmental Medicine. He was co-chair of the group that collated the Position Paper on “Realising the Health Benefits of Work”. Dr Beaumont does not and has never worked at the Ministry. He was part of the external advisory committee representing the various health and disability organisations that the Ministry co-ordinated regarding the Welfare Reform programme. Dr Bratt’s contact with Dr Beaumont was limited to facilitating meetings with Sir Mansel Aylward.
Dr Bratt has not met with or had any correspondence with Professor Gordon Waddell.
The remainder of your request for information is very broad and substantial manual collation would be required to locate and prepare all of the information within scope of your request. As such I refuse the balance of your request under section 18(f) of the Official Information Act. The greater public interest is in the effective and efficient administration of the public service.
I have considered whether the Ministry would be able to respond to your request given extra time, or the ability to charge for the information requested. I have concluded that, in either case, the Ministry’s ability to undertake its work would still be prejudiced.
I am sorry that I cannot be more helpful on this occasion. You have the right to seek an investigation and review of my response by the Ombudsman, whose address for contact purposes is:
The Ombudsman
Office of the Ombudsman
PO Box 10-152
WELLINGTON 6143
Yours sincerely
Debbie Power
Deputy Chief Executive Work and Income”
……………………….
Attached to that letter was a 3-page copy of the mentioned ‘Work and Income Medical Certificate Survey – 2010’, with a set of questions and the summary of answers. It is attached to the response from MSD dated 27 Feb. 2014, and the whole response can be viewed and downloaded here:
MSD, O.I.A. rqst, re Dr Bratt, presentations, contacts, anon., 16.01., reply by CE, 27.02.14
2. MSD’s further response by email, from 12 Nov. 2014 (10:19 am)
Following a complaint letter by the O.I.A. requester to the Office of Ombudsmen (from 09 March 2014), which will also be attached to this post, the Ministry did many months later, on 12 Nov. 2014, send a further response by email:
“Dear Mr Xxxxxxxxx”
“We refer to your Official Information Act request of 16 January 2014, where you sought detailed information regarding Dr Bratt’s presentation ‘Ready, Steady, Crook’ and his meetings with other health professionals. Further to this request and your subsequent complaint to the Office of the Ombudsman, we are able to provide you with further clarification regarding the questions you believe were not fully answered:
• question one: Whether the information obtained from GPs related to a specified time period? The survey was carried out in 2010 at several large National General Practitioner Organisations’ annual conferences. No time period was specified for responses to apply to. The date, 2010, is on the subject heading of the survey sheet – as already provided
• question three: No response to part c) of the question – the purpose of the survey question was to gauge the extent to which GPs are aware of additional “external” pressures on them when completing Medical Certificates. No in-depth analysis was possible on the basis of a simple self-reported survey sheet. The responding GPs were not asked the questions – they were just handed the survey sheets to complete and return to Dr Bratt if and when they chose to do so
• question four: No clarification of whether the statistical information relates to persons ever returning to any work, or whether the person may never return to the same kind of job or work previously undertaken – it is Dr Bratt’s understanding that the Australian/New Zealand statistics quoted relate to the likelihood of a person having been out of work unintentionally for a period of time ever returning to their original job or a similar one. You have already been supplied with the reference
• question 10: Exact times, dates and types of contacts with the listed professionals were not provided – Dr Bratt does not keep a record of the times, dates, and types of contacts he has had with the listed professionals or anyone else. Dr Bratt’s emails from that period have been deleted. Many contacts were personal to Dr Bratt. Dr Bratt has never had any contact with Professor Waddell
We hope you find this information helpful.
The Office of the Ombudsman has been forwarded a copy of this email. They will be in touch in due course.
Yours sincerely
Ombudsman and Privacy Complaint Services
Ministry of Social Development”
A scan copy of that anonymised response from 12 Nov. 2014 can be viewed by clicking this link here:
MSD, O.I.A. rqst, re Dr Bratt, presentations, contacts, anon., 16.01., further reply, 12.11.14
E) MSD’s REPEATED RELUCTANCE TO PROVIDE OFFICIAL INFORMATION – AN ANALYSIS AND INTERPRETATION OF RECEIVED INFORMATION
When looking at the rather specific, clear requests and questions 1 to 10, that were put to MSD by way of the above O.I.A. request from 16 January 2014, and then looking at the information provided with the responses from MSD on 27 February and also 12 Nov. 2014, the following becomes clear:
MSD chose not to respond at all to a number of questions or requests, MSD only provided some of the asked for information on some other requests, and MSD actually only properly answered a few of the total number of requests. We can say that the response from 27 February 2014 was rather brief, superficial and poor, as it simply ignored many requests, and apart from that provided only limited information in a summarised manner. That was no coincidence, and will rather have been intentional. There appears to have been a reluctance to provide anything of substance that could lead to further follow-up questioning by the requester, or for that sake other members of the public.
Requests/questions 2 and 9
So MSD appear to have started with first responding in part only to requests 2 and 9 in the O.I.A. – by simply referring the requester to two “papers” that Dr Bratt appears to have primarily relied on when preparing his presentation ‘Ready, Steady, Crook’. These are:
1). “Realising the Health Benefits of Work”, produced by the ‘Australasian Faculty of Occupational and Environmental Medicine’ (AFOEM), largely based on “research” information presented by controversial Professor Mansel Aylward;
2). “Working for a Healthier Tomorrow”, commissioned by the United Kingdom Department of Health and the Department for Work and Pensions – by Dame Carol Black, who has relied on similar research findings as Prof. Aylward.
Both of these “position papers”, containing selected statistical – and also some other research data with their references, are well known to insiders, but they are both significantly influenced by the so often quoted same “experts” like Professor Mansel Aylward and some of his like minded colleagues like Waddell and Burton, with links to the once so called ‘(UNUM Provident) Centre for Psychosocial and Disability Research’ in Cardiff, Wales. Both publications contain numerous references to these and selected other professionals, and must therefore be treated with caution, as to their “independence”. Even Professor Aylward has in recent years repeatedly admitted, that more research is needed to be conducted in the areas he has “researched”, after having faced wide spread criticism in the U.K. and elsewhere. References offered do otherwise represent a list of various statistical and other employment or welfare related reports, with little solid medical scientific value. I will address requests 2 and 9 separately in more detail later in this post.
Request/question 4
O.I.A. request 4 sought specified information in the form of statistical evidence for claims Dr Bratt made on slide or page 23 of his presentation ‘Ready, Steady, Crook’, which has also appeared in some other presentations. There he stated the following re ‘Worklessness’, sounding rather definitive:
“If the person is off work for:
20 days the chance of ever getting back to work is 70%
45 days the chance of ever getting back to work is 50%
70 days the chance of ever getting back to work is 35%”
(On page 22 of the presentation a reference is made to “both Australian and NZ studies”)
There was some information provided to answer request 4, but it is again of very limited usefulness, as all that MSD offered in the first response from 27 Feb. 2014 were three sources of largely statistical information on the likelihood of persons returning to work, based mainly on surveys:
1). Campbell Research and Consulting: ‘2008/09 Australia + New Zealand Return to Work Monitor’; ‘The Heads of Workers Compensation Authorities’; Melbourne, 2009
2). ‘RTW Trends in Australia and New Zealand’; Dr Mary Wyatt, 2009; publicly available at http://www.rtwmatters.org/publications/all-jurisdictions-rtw-monitor-part-1/
3). Johnson D, Fry T “Factors Affecting Return to Work after Injury: A study for the Victorian WorkCover Authority. Melbourne: Melbourne Institute of Applied Economic and Social Research”; 2002.
When examining these “sources” more closely, they represented actually just two, as 1) and 2) above used the same survey data gathered annually by ‘Campbell Research and Consulting’!
The annual Campbell Research and Consulting ‘Australia + New Zealand Return to Work Monitor‘ has been based on annual phone surveys that only covered outcomes and processes reported by sample groups of between a total of about two to three and a half thousand workers involved in workers compensation schemes. It has not included workers with employers that are self insured. Selected persons, who were paid at least 10 days income compensation, were 7 to 9 months after lodging their claims simply being asked a set of questions relating to past or existing work, their individual circumstances and their prospects to return to work, and what could have impacted on this. The survey has not included Western Australia, ignored some types of useful important information, and is therefore hardly all that representative. It did not provide proper medical, scientific information on the direct impact of injuries, sickness and impairments on work ability. The one report quoted only covers a survey for 2008 to 2009. As for data collected for New Zealand showing some differences to that gathered for jurisdictions in Australia, one must consider that there may be different standards for occupational health and safety, and for the application of such for both countries. Also may there be systemic differences in regards to accessible rehabilitation and health care, in income and compensation payment levels, in availability of suitable employment, and of course in economic circumstances, which would all play a role and contribute to some variances in the presented figures. Yet overall, trends and levels for Return to Work (RTW) have been quite similar and mostly stable over time, in both New Zealand and Australia.
An online publication of the mentioned report can be found via this link:
Click to access Australia%20and%20New%20Zealand%20Return%20to%20Work%20Monitor%202008-2009.pdf
As for the information presented in reply to O.I.A. request 4, which was asking for evidence backing the statistics quoted by Dr Bratt in his presentation ‘Ready, Steady, Crook’ (page 23), a reader of that report will struggle to find such evidence in the mentioned report. It appears that Dr Bratt was re-interpreting selectively chosen data, to suit his agenda to “prove” things, that are not actually backed up by information contained in any of the referred to reports.
Yes, the various sets of statistical data presented in tables and graphs even contradict some of Dr Bratt’s other frequent claims, that are based on other “research” by “experts” like Mansel Aylward, such as that most barriers for persons to return to work are not related to sickness or disability. Roughly half of all persons returning to work claim that they fully recovered from their injuries, and only a marginal percentage mentions “psychological” reasons for not having been able to return to work (see also a table 9 on page 23 and table 10 on page 25 of the above report from 2008-2009).
As for Dr Mary Wyatt, and her reports on the ‘Return To Work Matters’ website, she is herself editor for that website and has authored many publications on it. She is also mentioned as having been chair of the ‘Australasian Faculty of Occupational and Environmental Medicine Policy Committee’ and is a member of the ‘College of Physicians Policy and Advocacy Committee’. As we know, under President Elect Dr David Beaumont, it was the AFOEM itself, which invited Mansel Aylward to present his “findings” to the Faculty, which was the launch of the agenda to influence the New Zealand and Australian medical professional organisations to bring in new UK style medical and work capability assessment approaches. Mary Wyatt did alongside Mansel Aylward attend the launch of the so-called ‘Realising the Health Benefits of Work’ position statement in May 2010. Dr Beaumont was the co-chair of the AFOEM’s ‘Position Statement Working Group’. Again, we see that all the usual, known key promoters of these policies joined their forces to introduce them here in “Down Under”.
While there are claims made that RTW rates have declined over recent years (up to 2009), this appears to be only so for Australia, but not New Zealand, because on the website it says this:
“There has been no material change in the time taken to return to work in New Zealand”…
See the website page found via this link for more details, under ‘Executive Summary’:
http://www.rtwmatters.org/publications/all-jurisdictions-rtw-monitor-part-1/
Also take note of this information on the same page:
“Claim cost data was provided by Australian jurisdictions only. Claim costs have increased across all jurisdictions, with the average cost of claims at six months up an average of 22%. This ranged from 11% in SA to 37% in Victoria. Information on claims costs was not available for NZ.“
“It should be noted that W.A. does not participate in the Annual Return To Work Monitor survey or report.” “An anomaly with the Victorian data is being investigated.”
On the same page, under the heading ‘Background to this publication’, it says this:
“In this series we compare and contrast return to work trends across Australian and New Zealand jurisdictions from 2005-06 to 2008-09.
The RTW Monitor survey has been run each year since the mid 90s, initially in Victoria with other jurisdictions joining the monitor later. The last four years of the Monitor are publicly available via the Heads of Workers Compensation Authorities website and have been used to compare recent jurisdictional trends.
At the outset we need to make clear – one cannot simply compare the results of one jurisdiction to another.”
Under ‘The Return to Work Monitor survey’ we read:
“The Return to Work Monitor is a survey of approximately 2000 injured workers in Australia and New Zealand. The Monitor asks people with work injuries about return to work.
The Monitor interviews employees seven to nine months after they have lodged a claim, where ten days or more compensation has been paid. The survey is completed by phone in November and May each year by Campbell Research & Consulting.
The RTW Monitor is designed to compare return to work outcomes and the processes involved in workers compensation schemes. Injured workers employed by organisations which are self-insured are not included.”
Here is the link to the main page of the site with more info: http://www.rtwmatters.org/
So that website and the relevant information on it are also based on the same report as listed under 1) above, that is by ‘Campbell Research and Consulting’.
As for the quality of the data, and the bold, definitive sounding statements that Dr Bratt makes in his presentations, it shows he is selectively picking statistics to promote his and MSD’s push to bring in firmer work capability assessment criteria and higher work test obligations for sick, injured and impaired. He is quoting and interpreting data out of context and thus misrepresenting the otherwise much more balanced – hardly that worrying – real situation and trends we have. A closer look at the information on ‘RTW Matters’ reveals, that it does not back many of Dr Bratt’s assertions.
For the spin used see also pages 5 and 6 of the publication ‘RACP news’, Vol. 30, 4 August 2010:
http://www.racp.edu.au/docs/default-source/racp-news/racp-news-august-2010.pdf?sfvrsn=2
Only the third mentioned report called “Factors Affecting Return to Work after Injury: A study for the Victorian WorkCover Authority”, from the ‘Melbourne Institute of Applied Economic and Social Research’ (in 2002) appears to contain some basis for the information that Dr Bratt likes to include in his presentations, as was asked for with O.I.A. question 4. A link to that report can be found here:
That rather outdated report is based on a descriptive analysis of data from a sample of records from close to 50,000 claims lodged for workers’ compensation in Victoria between 01 July 1993 and 30 June 1998 (a third of the total). The database used, which is covering circumstances about claims, actually covers a 15 year period. But already on page 3 under ‘1.3 Results’ and ‘Descriptive analysis’ it says in the report, that “the data are very skewed in a number of important respects, with many claims being of very short duration and low cost, and few observations with very long duration and very high cost”.
Under ‘Multi-variate modelling’ it also says: “In none of the above analysis is the independent effect of other claimant characteristics controlled so conclusions about apparent differences between groups may be misleading”.
But using a multi-variate analysis and making a simple comparison of groups of claimants, the authors claim that their research revealed significant independent effects of certain defined classes of variables (e.g. in incidence, duration and cost between industries, by affliction type, incidence type and agents). Under ‘1.5 Discussion’ (on page 4) the publication explains how workers compensation claims behaviour was observed, particularly in regards to incidence, duration and amounts of claims. Some limitations of the research method were again being noted.
Under ‘2. Introduction’ (page 5) the report then also concedes:
“However while the focus of the study is return to work it should be noted that return to work is not observed directly in the data. What is ob served is that claimants no longer receive weekly payments. It is surmised that, for those of workforce age, going off benefit is tantamount to return to work. However there are other possibilities”.
Nevertheless, the report appears to have some scientific value, like it is the case with many research reports of this type having some quality issues, but otherwise at least some useful information to provide. By looking at a table ‘3.2 Summary statistics, WorkCover sample, means and medians’ on page 12, we see information that may raise some questions, but significant variations between mean and median time off work, and other aspects are logically explained. Despite of the marked difference for time off work between females and males, most of the other data is hardly extraordinary. Mean time lost off work and paid by WorkCover is 96 days for females and 64 days for males. Data provided on page 14 a table ‘3.5 Weekly compensation payments by affliction’ is with the shown variations also not that surprising.
The report does for the rest present a large number of graphic and tabled statistical presentations, as well as some formulae for calculating incidence, durations, costs, and so forth of workers’ compensation payments, which do generally appear to tell us what most will already have presumed or known from anecdotal reporting. Nothing appears to be all that much out of the ordinary. Such facts like the severity of a condition or injury being a strong indicator for the likely length of a claim is hardly surprising. As only a small percentage of workers will be affected by serious injury, the fact that they are likely to depend on claims payments for longer periods, and are therefore less likely to return to their former employment, is simply normal and to be expected. And while the costs per capita will be high for instance for some serious injuries, this has to be viewed in the context of the vast majority of the claimants not being that seriously injured and out of work for shorter periods.
Having gone over that partly mathematically complex analysis and report, I have not found any direct mention of the statistical data Dr Bratt has used on page 23 in ‘Ready, Steady, Crook’, so I must presume he and others have extrapolated figures from data sets in this report. This will most likely have been done from the various graphs showing so-called “survivor functions” for certain conditions and other impacting factors or circumstances. The way the information is used in Dr Bratt’s presentations is extremely misleading. The vast majority of people do eventually return to work, and only a small percentage of injured and impaired persons will not return to work for longer periods. What Dr Bratt and MSD have done, is to confuse – or intentionally mix up – cause and effect, ignoring the fact that only a tiny percentage of injured, same as seriously sick and impaired persons, will never return to their previous or even other work. The systems and supports that are in place do already ensure that most people do minimise their time off work, and are encouraged to return to employment.
And only upon the Ombudsman complaint from early March 2014 did MSD provide some further information in response to the O.I.A. request number on 12 November 2014. It did then contain the following comments:
“it is Dr Bratt’s understanding that the Australian/New Zealand statistics quoted relate to the likelihood of a person having been out of work unintentionally for a period of time ever returning to their original job or a similar one.”
That did most certainly qualify the earlier provided information, and put a totally new meaning on the rather blunt, misleading claims made in ‘Ready, Steady, Crook’. Also should we ask the valid question, how relevant are RTW figures for workers suffering injuries due to accidents, as that is just one group of people that may face impairments and disabilities necessitating time off work and workers’ compensation or other social security support. How relevant is this kind of research for persons having congenital health conditions, having permanent physical or mental sickness or impairments, leading to disability? I dare say that the research referred to above may not be all that relevant at all, same as it may not be that relevant for healthy persons who are unemployed. Hence the references provided by MSD, to provide supposed “evidence” for Dr Bratt’s claims, lack credibility.
Requests/questions 1 and 3
The information that MSD provided in reply to O.I.A. requests 1 and 3 did at first consist only of a copy of a survey form with response data on it, which was gathered from general practitioners attending some conferences. Initially it was in the letter from 27 February 2014 simply referred to as: “Please find enclosed a copy of the Work and Income Medical Certificate Survey – 2010 and the results of that survey which featured in Dr Bratt’s presentation ‘Ready, Steady, Crook’”.
You can find the authentic copy of that form at the end of the first O.I.A. response by MSD from 27 Feb. 2014, which is contained in the attached PDF file, also found via this link:
MSD, O.I.A. rqst, re Dr Bratt, presentations, contacts, anon., 16.01., reply by CE, 27.02.14
For those not aware of what the information on page 32 of Dr Bratt’s presentation ‘Ready, Steady, Crook’ is, here are the claims he makes there about findings from a ‘GP Survey’:
“Sources of pressure felt by GPs
71% felt this was the mechanism to provide income to the patient
55% – felt W+I staff created an expectation
40% – because they believed there was no work available
31% – felt W+I weren’t doing anything for the patient
30% – had experienced a sense of threat and intimidation”
Again, MSD provided that form, without offering any explanations for the contents of that form, and without properly answering questions in O.I.A. requests 1 and 3. Only upon the complaint to the Office of the Ombudsmen (dated 09 March 2014) did MSD deliver the following additional explanations in their further response from 12 Nov. 2014:
MSD, O.I.A. rqst, re Dr Bratt, presentations, contacts, anon., 16.01., further reply, 12.11.14
Re question one: “Whether the information obtained from GPs related to a specified time period? “
Comments by MSD: “The survey was carried out in 2010 at several large National General Practitioner Organisations’ annual conferences. No time period was specified for responses to apply to. The date, 2010, is on the subject heading of the survey sheet – as already provided”
Re question three: “No response to part c) of the question”
Comments by MSD: “the purpose of the survey question was to gauge the extent to which GPs are aware of additional “external” pressures on them when completing Medical Certificates. No in-depth analysis was possible on the basis of a simple self-reported survey sheet. The responding GPs were not asked the questions – they were just handed the survey sheets to complete and return to Dr Bratt if and when they chose to do so”
So while Dr Bratt quotes his so-called “GP survey” results like some convincing “evidence” in his presentations, such as ‘Ready, Steady, Crook’ (see pages 31 to 33) or ‘Medical Certificates are Clinical Instruments Too’ (see page 29), this is far from the truth. That very “survey” he conducted, lacked any proper statistical methodology and validity, as it was not conducted in an appropriate scientific manner. It was merely a random “survey” based on questionnaires he handed out, and which he only partly got back. From the returned questionnaires, which were also not all fully completed, he extracted the figures that he considered of use, to promote his agenda of trying to convince medical and other health professionals, same as other target groups, to adopt the approaches he favours for getting sick, injured and disabled into “suitable” forms of work. It was apparently an attempt to generate an impression, that GPs face some unreasonable “pressures” or expectations from patients, seeking medical certificates to claim benefits.
Further to request/question 2
As for O.I.A. request 2, MSD have shied away from offering any proper response to the questions asked in it. NO confirmations was given, and no medical scientific evidence was delivered to prove that “the benefit” is “addictive” like a “drug”, or that any of the other bizarre claims made in Dr Bratt’s presentations have any validity. Let us remember that Dr Bratt has repeatedly claimed that “Long term unemployment has been shown as bad as smoking 10 packets of cigarettes daily”. He has also asserted: “As a drug, it would be an addictive, debilitating substance, he told the RNZCGP education convention” (see question 2 in the O.I.A. request from 16 Jan. 2014). Up to this day, MSD have given no proper response to that request. Not even the complaint to the Ombudsman resulted in any further information, even though it was pointed out, that neither the position paper by the ‘Australasian Faculty of Occupational and Environmental Medicine’ (AFOEM), called “Realising the Health Benefits of Work”, nor the UK paper titled “Working for a Healthier Tomorrow”, by Dame Carol Black, does deliver evidence to support Dr Bratt’s bold quotes or comments.
The Ombudsman did not bother to press MSD for a clear answer, but concluded in his provisional decision, that from their earlier comments, it must be presumed that MSD agree with Dr Bratt. In a “provisional opinion” on the O.I.A. requester’s complaint, Ron Paterson wrote on 22 May 2015:
“In response, the Ministry has provided the following additional information:
Question 2 – In relation whether MSD agrees with Dr Bratt, the answer is yes, and the links, including the five references, were provided. While MSD did not specifically state that it agreed with Dr Bratt, it can be implied from providing the references.” “The Ministry does not hold this information and has no further comment to make.”
This is an astonishing comment. Indeed, the Ministry appears to have been forced to concede that it “agrees” with Dr Bratt’s comments and position, being his employer, it would possibly have to dismiss him, should it disagree with him now, having allowed him to make bizarre, misleading claims in his presentations. But of course MSD will not comment on this publicly.
Request/question 5
O.I.A. request 5 referred to a ‘NZ Doctor’ publication from 01 August 2012 (article by Lucy Ratcliffe), where Dr Bratt was quoted as saying: “A UK study found of the main obstacles for going to work, medical problems made up just 3 % of the list”. So the source of the supposed evidence was asked for, but again, NO proper response was provided by MSD. All that MSD provided in their response from 27 Feb. 2014 was the following: “With regards to Dr Bratt’s statement quoted by Lucy Ratcliffe – the figures were taken from a presentation by Sir Mansel Aylward to a representative group of medical professionals from various medical colleges in 2012. The study was independently undertaken by Cardiff University where recipients of a disability-related benefit were interviewed to help identify the key factors that prevented their return to the workforce.”
So again, we are merely talking about a kind of “survey”, or number of “interviews”, to gather data.
After the dissatisfaction with MSD’s unclear response, mentioning no source by name, date and author, the requester followed up the initial complaint to the Ombudsman, the following information from MSD was provided by Ron Paterson in his “provisional opinion”:
“Question 5 – Mr ……….. has previously been provided with Dr Bratt’s research sources. The Ministry holds no additional information about the Cardiff University study.”
Again the requester and readers here are left without any proper response, as the particular study is not named by title, by author or date. The only reference being made to a “study”, which though appears to be nothing else but a form of series of interviews of persons affected with disabilities, does not give us the opportunity to properly examine and assess it. NO information about the quality and scientific solidity of the research or results is presented; hence I would not give much credit at all to the claims made by Dr Bratt, supposedly supported by the mentioned, unknown “Cardiff University study”.
Requests/questions 6, 7 and 8
There was NO real information at all provided by MSD in response to O.I.A. requests 6, 7 and 8, neither in the letter from Deputy Chief Executive Debbie Power dated 27 February 2014, nor in the additional response by email (from an unnamed MSD staff member) dated 12 Nov. 2014. Hence the requester made an attempt to ask the Ombudsman by way of a further letter from early December 2014, to seek from MSD at least some samples of the information in response to requests 6, 7 and 8, as not ALL such information was expected.
Under request 6 the request was for information that Dr Bratt may have on harms that exist at workplaces, about certain harms caused by work, about certain types of work causing ill health or injury, and about insufficiently equipped and organised work places, or particular work practices, work duration, or any other aspects relating to work or employment, that may be causing harms to health and safety of workers. Under request 7 the request was for information Dr Bratt may have about the negative and harmful health effects from relative or general poverty, instead of simple “worklessness”, that people on benefits or in low paid work may face. And lastly under request 8, the request was for information on whether the quality of health of a beneficiary, who suffers from sickness, illness, physical or mental impairment and disability, may rather much more depend on individual circumstances, and that some simple forms of physical activity or mental activity, other than work in the form of “open employment”, may rather be beneficial for people.
Regrettably the Ombudsman was not able or willing to obtain further information from MSD on these matters, and in his “provisional opinion” from 22 May 2015 he quoted MSD with this:
“Questions 6, 7, 8 and 9 – In relation to question 6, Mr …………… also has copies of other Dr Bratt presentations, and they are publicly available. Mr ……………. was also given the overarching links to papers and the substance of the statistics which informed Dr Bratt’s papers. Most of the rest falls under section 18 (f).” “The information in relation to Questions 7 and 8 is not held.” “In response to the request for other examples of the references requested in Questions 6 to 9, and whether Dr Bratt can estimate the percentage of research from the Centre, the Ministry stated that the information is not readily accessible.”
This response by MSD, passed on through the Ombudsman, is nothing much as a typical O.I.A. “cop out”, as it suggests that Dr Bratt and MSD simply cannot bother making any effort to present at least some samples of the information sought, that is at least to provide information on requests 6 and also 9. But it has at least become clear, that Dr Bratt, and with that also MSD, do NOT hold any of the information requested under points 7 and 8. That proves, that his focus is ONLY on stressing any perceived and hypothetical harm that may be caused through “worklessness”. We know the reasons and motivations behind this. Dr Bratt appears to take no real interest in the harm that may be caused to health through poverty. He does also seem to have little interest in the possibility, that some health benefits may rather be achieved for individual’s suffering illness, sickness, physical and mental impairments causing disability, by engaging them in other activities than paid open employment. Dr Bratt seems to rather only focus on supposed “health benefits” that he believes come with paid work, than through an individual’s other physical or mental activities, that may be limited, and that may well prohibit demanding, stressful and strictly regulated paid employment on the competitive job market.
That proves again, that the drive to get people off benefits and into work is primarily motivated by achieving cost savings for MSD and Work and Income, and by getting beneficiary numbers down. There is no alternative offered to paid work, it seems, while many if not most impaired and disabled persons may rather be better placed in special, subsidised employment, or other health promoting activities, that could enhance their lives and offer them a lifestyle and security that better suits them.
Further to request/question 9
Re request 9 the Ombudsman has already commented above, what MSD’s position is re the information sought under it. A further request letter to the Ombudsman from early December 2014, emphasized that it would suffice if MSD provides a list of the research resources Dr Bratt used for his presentations. By mentioning the author of such, it would be sufficient to establish, from whom he sourced such information, the requester wrote. The requester also expressed the following concerns:
“As for my request under point 9 MSD have only provided a short list of 3 sources for sources and reports that provide or back up information Dr Bratt used in the mentioned two presentations. These reports at the bottom of their response from 27 February are all about “return to work” statistics, and how they are being interpreted, and about nothing else. They do not deliver medical scientific proof that I asked for, for instance for Dr Bratt’s claims about the alleged harmful effects of benefit dependence, and the benefit being like “an addictive debilitating drug with significant adverse effects to both the patient and their family (whanau) – not dissimilar to smoking”. He also claims “Long term unemployment has been shown as bad as smoking 10 packets of cigarettes daily”. Dr Bratt told a NZ Royal College of General Practitioners education convention that the benefit is, “as a drug, it would be an addictive, debilitating substance…”. (see also my request 2).”
“I have information that Dr Bratt has been relying a lot on information delivered by the so-called ‘Centre for Psychosocial and Disability Research’ run for years by Professor Mansel Aylward, with whom he has also had regular personal and professional contacts. It is clear that Dr Bratt has used resources that were prepared and written by Mansel Aylward, also Gordon Waddell and Kim Burton, all being directly or indirectly linked to the said “research centre”, as part of Cardiff University, and to other research that follows similar theories about “worklessness” and causes for poor health and for disability. Mansel Aylward has basically presented studies based on comparing statistical data, and he drew his conclusions from the information, which does though deliver anything but conclusive evidence about the causal effects of unemployment on health, resulting in sickness and disability, of which many people dependent on health related benefits may suffer. While there may be some form of correlation or association between unemployment and poor health, this does not mean that one circumstance or condition is the cause of the other. It is significant to note that the same centre where Mansel Aylward has for many years served as a director used to be sponsored by a controversial insurance corporation called UNUM, who also cooperated with him as an “advisor” on welfare reforms in the UK, when Aylward was Chief Medical Officer for the Department of Work and Pensions (DWP) in the UK. Such “sponsoring” by a vested interest party, that then also launched new health and disability insurance products on the UK market, while welfare reforms tightened entitlement criteria for many sick and disabled there, should be of major concern. The fact that Mr Aylward went onto the payroll of the same company raises many questions, also about his “research”, and the quality of it.”
The above stated concerns may have alerted MSD and Dr Bratt, to not enter any correspondence on this sensitive area, as some of the issues raised have also led to intensive debate about the controversial ‘Center for Psychosocial and Disability Research’, which has recently been renamed yet again, after it had already the former sponsor’s name ‘Unum Provident’ taken out of it. MSD seem very reluctant to discuss any concerns, or to provide any information that Dr Bratt appears to have relied on, and I will leave it up to the reader to make her or his own conclusions about the reasons behind all this. Any informed and intelligent enough person can draw their own logical conclusions.
Request/question 10
As for request 10 there was initially only a briefly summarised, rather disappointing response given by MSD in the first letter from 27 Feb. 2014. Instead of providing any of the more detailed sought information, a brief overview of contacts Dr Bratt had (or did not have) with the named “experts” was given by MSD, being Prof. Aylward, Dr Waddell and Dr Beaumont. Rather than providing detailed information on the times, dates, types of and purposes of contacts, meetings and communications (including correspondence) that Dr Bratt had with these professionals, the following general explanation was given:
“In June 2013 Sir Mansel Aylward returned to New Zealand to present his report into the study. During his visit to the Faculty of Occupational and Environmental Medicine Dr Bratt met with him to discuss the extensive work he has been involved with about the adverse health effects of worklessness. At the invitation of the New Zealand Medical Association Sir Mansel Aylward was a keynote speaker at the General Practitioner Conference and Medical Exhibition in Rotorua in June 2013 where he addressed over 900General Practitioners. Prior and subsequent to this visit, Dr Bratt had numerous email and phone conversations with Sir Mansel Aylward to confirm the travel arrangements and conference details.
Dr David Beaumont is an occupational medicine physician who is the President-Elect of the Australasian Faculty of Occupational and Environmental Medicine. He was co-chair of the group that collated the Position Paper on “Realising the Health Benefits of Work”. Dr Beaumont does not and has never worked at the Ministry. He was part of the external advisory committee representing the various health and disability organisations that the Ministry co-ordinated regarding the Welfare Reform programme. Dr Bratt’s contact with Dr Beaumont was limited to facilitating meetings with Sir Mansel Aylward.
Dr Bratt has not met with or had any correspondence with Professor Gordon Waddell.”
Upon a complaint to the Ombudsman, the following further information was provided by MSD, sent by an unnamed staff member by email on 12 November 2014:
“Dr Bratt does not keep a record of the times, dates, and types of contacts he has had with the listed professionals or anyone else. Dr Bratt’s emails from that period have been deleted. Many contacts were personal to Dr Bratt. Dr Bratt has never had any contact with Professor Waddell”
As both received responses were considered very unsatisfactory by the O.I.A. information requester, the requester sent yet another letter to the Ombudsman on 03 December 2014 expressing concerns about the lack of available information, the deletion of emails, and contradiction in MSD’s statements.
The requester explained the involvement of Mansel Aylward and Dr Beaumont in consultations for the formation of major welfare reforms in 2012/13, and how they advised a MSD appointed ‘Health and Disability Panel’ on health and work capability assessment matters. He stated that Mr Aylward was repeatedly mentioned by the then Minister Paula Bennett as an advisor they used during the reform process. It would be beyond belief that no records were kept by Dr Bratt on his contacts with both professionals, the requester wrote. Also did the complainant express concerns about Dr Bratt mixing private with official contacts and activities. Mention was made of Dr Bratt’s visit to the UK in early 2014, where he again met and consulted with Prof. Aylward, in his capacity as Principal Health Advisor. This showed there had been a close professional cooperation between the two, the requester asserted. The requester also referred to information used in Dr Bratt’s presentations and his repeated comments to media, which indicated he had contact with Mr Aylward for at least two years, and used information from the ‘Centre’ headed by Prof. Aylward in Cardiff. It was evident that Dr Bratt was acting in his professional capacity and would have had to keep certain records of his contacts and correspondence with Drs Aylward and Beaumont, the requester wrote. Dr Beaumont’s former employment at ATOS in the UK was mentioned, same as how controversial work capability assessments in the UK were conducted by that firm. Dr Aylward’s involvement as former Chief Medical Officer of the DWP in the UK was mentioned, and evidence was presented to the Ombudsman on contacts and cooperation between Drs Bratt and Aylward.
The O.I.A. information requester furthermore wrote to the Ombudsman:
“I suggest you insist on MSD providing the information that has so far not been delivered, that has been withheld under section 18 (f) under the Official Information Act, and that has otherwise been delivered short of what my initial request sought. It is in my view a somewhat questionable justification, and indeed very worrying, that MSD simply states Dr Bratt deleted all records of his contacts and emails.”
Regrettably the Ombudsman did not appear to make much in the way of further efforts to obtain further information from MSD, but at least sought some further comments in relation to request 10. In his “provisional opinion” letter from 22 May 2015 Ron Paterson had this to write:
“Your complaint
You complained to this Office about the Ministry’s decision on the request. In particular, you raised concerns about the refusal of much of the information sought under section 18(f), stating that the response you received was unsatisfactory because it did not completely answer your questions, including questions 1, 3, 4 and 10.
You also commented that it is reasonable to expect the Ministry, as an “organised government agency”, to locate and release the specified information without too much time and effort being required, and it is in the public interest that the Ministry does so.
Comments by the Ministry
In its report to me, the Ministry advised that your request asked a number of broad questions concerning information that was not centrally held. The Ministry stated that attempting to collate the information from over 100 sources would be a time consuming exercise. However, the Ministry informed me that you have been provided with links and references to the research sources requested. The Ministry confirmed that the information sources are highly respected academics whose papers are publically available.
In order for the Ministry to centrally collate the papers and documents as well as the sources already provided into a single document, it would require a significant amount of time from Dr Bratt – approximately two weeks. The Ministry advised that diverting Dr Bratt away from his role as Principal Health Advisor for this length of time would have a serious and prejudicial impact on the Ministry’s ability to carry out its functions.
However, the Ministry agreed that additional information could be provided to you about questions 1, 3, 4 and 10, and it did so on 12 November 2014. On 03 December 2014 you confirmed that you remained dissatisfied and considered that the Ministry had still not provided an appropriate reply. Y ou detailed the particular information that you still wished to obtain. A copy of this was provided to the Ministry and it was asked to provide further comments. In response, the Ministry has provided the following additional information:”
(Note: See further above, the already quoted further information provided to questions 1, 3 and 4!)
The Ombudsman Ron Paterson did in his “provisional opinion” add the further comments he received from MSD as response by them to request 10:
“Question 10 – Dr Bratt only deleted emails which were personal in nature and did not relate to official engagements in his capacity as Principal Health Advisor.”
“In relation to question 10, the Ministry provided me with a copy of its guidance relating to the retention of records, including emails, which is issued to staff and is available on the Ministry’s intranet. I have asked the Ministry to send you a copy of the guidance also.”
Ron Paterson did not have anything else to comment on the O.I.A. requester’s concerns about Dr Bratt’s deletion of emails (as stated by MSD), or about any legal issues that may have arisen in relation to O.I.A. request 10. For the remainder of his “provisional opinion” he wrote about the provisions in the O.I.A. allowing MSD to withhold or not provide information sought. In his response in his letter with his “provisional opinion” from 22 May 2015 Professor Paterson wrote further down in his letter to the requester:
“I am satisfied that the remaining information that is withheld by the Ministry in relation to your request is not centrally located. There seems little doubt that responding in full to your request would involve substantial collation and research, particularly by Dr Bratt. In addition, the estimated time of two weeks that Dr Bratt would be diverted from his role to do this work would undoubtedly negatively affect the Ministry’s day-to-day operations.”
In the end of the letter Ron Paterson summarises under ‘My provisional opinion’:
“In my provisional opinion, for the reasons set out above, the Ministry was entitled to refuse part of your request for information relating to Dr Bratt’s presentations under sections 18(f) and 18(g) of the OIA.”
Being understandably very disappointed by the provisional opinion of the Ombudsman, the requester made a final attempt to request Professor Paterson to further investigate the matters raised, and to seek further clarifications from MSD. This was done by way of a letter dated 13 June 2015. Regrettably the Ombudsman did push aside numerous points of serious concern, and dismissed sufficient clear, also documented evidence that justified a formal investigation, and he did with his final decision more or less confirm his “provisional opinion”, which was stated in a rather short letter from 23 June 2015. He even used references to a letter from the Chief Archivist, who had also been consulted on Dr Bratt’s failings, to justify taking no action. But the Chief Archivist had herself ignored relevant evidence, and simply trusted comments by MSD, made in the first O.I.A. response from 27 Feb. 2014, even though comments by Debbie Power were later contradicted in two further responses from MSD.
Ron Paterson wrote in his final decision on 23 June 2015:
“I have now had an opportunity to consider your comments on my provisional opinion. However, having considered all the issues raised, I remain of the view that the Ministry was entitled to refuse part of your request, on the basis that some of the information is not held, and the remaining information would involve substantial collation and research.
I note that Archives New Zealand has looked into your concerns about the issue of Dr Bratt’s record keeping and is unable to provide any further assistance. In any event, my investigation is limited to the information actually held by the Ministry at the time of your request. Without access to the information in question, it is not possible to assess the content of those communications.
Overall, it seems that your concerns stem from your disagreement with Dr Bratt’s and the Ministry’s policies in relation to sickness beneficiaries, and the basis for that policy. It is open to you to raise your concerns about those policies with the Chief Executive of the Ministry, and/or your local Member of Parliament. The Ombudsmen have no authority to investigate matters of government policy. I have now concluded my investigation.”
The above summary of the correspondence covering concerns and outcomes relating to O.I.A. request or question 10 shows us, that MSD have not only been totally reluctant to provide detailed information about the contacts and correspondence Dr Bratt had with both Prof. Mansel Aylward and Dr David Beaumont (now President of the AFOEM), but that MSD have even done everything possible to cover Dr Bratt from being held to account for not keeping public records, which he should strictly have been required to keep under the Public Records Act 2005. Also has the Ombudsman, Professor Ron Paterson, been very reluctant to further investigate this matter.
Please find here the letters to and from the Ombudsman in PDF file format:
Ombudsman, complaint, O.I.A. to MSD, public interest, re Dr Bratt, anon., xx.03.2014
Ombudsman, complaint, MSD, O.I.A. rqst. 16.01.14, Dr Bratt, presentation info, ltr, xx.12.14
Ombudsman, complaint, O.I.A. to MSD, Dr Bratt, publ. int., prov. dec., compl., hilit, 22.05.15
Ombudsman, complaint, 3xxxxx, MSD, O.I.A. fr. 16.01.14, Bratt, presentations, anon, ltr, 13.06.15
Ombudsman, complaint, MSD, O.I.A. rqst. 16.01.14, Dr Bratt, presentation info, hilit dec., 23.06.15
F) A NEW ISSUE WITH DR DAVID BRATT’S DELETION OF ALL EMAIL CORRESPONDENCE
As a result of the O.I.A. request 10 made as part of the wider O.I.A. request to MSD from 16 Jan. 2014, there have been three different comments or statements by MSD in relation to Dr Bratt’s contacts with two of three initially mentioned senior professionals, being Professor Mansel Aylward from the former ‘Centre for Psychosocial and Disability Research’ in Cardiff, Wales, and Dr David Beaumont, now President of the AFOEM, who has in the past also run his own rehabilitation business called “Pathways to Work”, based in Otago. Of particular significance are the various responses by MSD relating to the contacts and correspondence between Dr Bratt and Prof. Aylward.
In the first response from 27 February 2014 Debbie Power did in her letter state the following:
“At the invitation of the New Zealand Medical Association Sir Mansel Aylward was a keynote speaker at the General Practitioner Conference and Medical Exhibition in Rotorua in June 2013 where he addressed over 900 medical practitioners. Prior and subsequent to this visit, Dr Bratt had numerous email and phone conversations with Sir Mansel Aylward to confirm the travel arrangements and conference details.”
The O.I.A. requester then wrote to the Ombudsman on 09 March 2014:
“Re question 10. MSD have only provided a general summary of ‘Dr Bratt and Other Practitioners’, and not disclosed the exact times, dates and types of contacts Dr Bratt had with the listed professionals – like Professor Aylward and Dr Beaumont. I accept that he never had contact with Professor Waddell. While I do not expect every single email or phone call being listed, it must be reasonably expected from MSD to provide the information I sought, by listing times or at least dates, and a frequency of phone calls or emails sent on certain days. I would certainly expect dates for face to face conversations and meetings to be provided, for the whole period of Dr Bratt’s employment as Principal Health Advisor for MSD and Work and Income.”
The requester asked the Ombudsman that the following action be taken:
“Given the unsatisfactory responses received, I ask you at the Office of the Ombudsmen to examine and assess the O.I.A. request and questions I sent (on 16 Jan. 2014), and to do the same with the responses I received from Debbie Power at MSD (on 27 Feb. 2014), and to then take the necessary action by approaching the Ministry of Social Development, in order to instruct them to provide the information that I should reasonably be able to expect and receive in this matter.”
“In view of the fact that we are talking about rather serious matters, where a Principal Health Advisor for MSD is making in part controversial and disputed comments and claims in presentations that he gives to professional medical organisations and other groups, I trust that you will give my request in this matter serious considerations.”
On 12 November 2014 the requester received some further information and explanations from MSD by way of an email, which showed no name or other identification of the author underneath it:
“..question 10: Dr Bratt does not keep a record of the times, dates and types of contacts he has had with the listed professionals or anyone else. Dr Bratt’s emails from that period have been deleted. Many contacts were personal to Dr Bratt. Dr Bratt has never had any contact with Professor Waddell.”
The response was “signed” only with: “Ombudsman and Privacy Complaint Services Ministry of Social Development”, and provided only limited additional information to other requests that had been made.
In a new letter from 03 Dec. 2014 to the Ombudsman’s Office the O.I.A. requester expressed his concerns about the further response received from MSD, and under Para [5] wrote:
“[5] The additional information offered in response to my original question 10 does though not help me in any way at all. I do actually find the comments made by MSD somewhat bizarre and astonishing, to say the least, and they are in my view unacceptable. To simply state that “Dr Bratt does not keep a record of the times, dates, and types of contacts he has had with the listed professionals or anyone else”, does not sound credible to me. I am surprised to read MSD’s comment “Dr Bratt’s emails from that period have been deleted. Many contacts were personal to Dr Bratt.” “
Under Para [17] the requester also wrote:
“I do not accept the answer that MSD give in both responses about Dr Bratt’s contacts with professionals like Professor Mansel Aylward and Dr David Beaumont, who were senior official advisors that were substantially involved in the consultation and formation process for the last major, controversial welfare reforms in 2012/13. MSD and then Minister Paula Bennett sought their advice on how persons on health related benefits should be treated and “assisted” when assessing them and trying to place them into work. It is beyond belief, that NO records were kept in a professional form and manner by Dr Bratt as a senior official in a senior advisory role for the Ministry of Social Development. He will certainly have kept comprehensive information on his contacts and in relation to organising the visits and meetings involving those two well known professionals. It is furthermore beyond belief, that Dr David Bratt was allowed to mix his private and official correspondence while performing his responsibilities as Principal Health Advisor for MSD. I do not believe that Dr Bratt was entitled to simply delete ALL his email correspondence and contacts that covered activities with the mentioned professionals.”
Some further concerns were expressed, which have partly already been mentioned further above in earlier sections in this post. Then in his “provisional opinion” Ombudsman Paterson wrote on 22 May 2015, that MSD had provided some additional information to ‘Question 10’. He quoted MSD with:
“Question 10 – Dr Bratt only deleted emails which were personal in nature and did not relate to official engagements in his capacity as Principal Health Advisor.”
“In relation to question 10, the Ministry provided me with a copy of its guidance relating to the retention of records, including emails, which is issued to staff and is available on the Ministry’s intranet. I have asked the Ministry to send you a copy of this guidance also.”
Given the inconsistencies in the responses given by MSD, the requester did raise further concerns in a letter to the Ombudsman on 13 June 2015:
“In view of those three comments I must ask, what is the truth then? All comments are somewhat contradictory, and somehow in conflict with each other, and this does leave me in a situation, where I get the impression that the Ministry is unsure of the truth. Dr Bratt was clearly corresponding with Professor Mansel Aylward in his professional capacity as Principal Health Advisor, not just on “personal” or “private” terms, as he was arranging and checking travel and booking arrangements for Mr Aylward to attend meetings with him and at conferences here in New Zealand. Mr Aylward can therefore not have been a “personal” contact. It is also bizarre, that in the further response from 12 November a claim is suddenly made, that Dr Bratt keeps no records of times, dates, types and contacts he has had with said professional(s), or anyone else. It remains to be my view that as Principal Health Advisor for MSD Dr Bratt was and is required to keep certain records about his correspondence and contacts, and I assert that these were not limited to arrange travel and conference attendance. Professor Aylward was also quoted as advisor on welfare reform, and his input had been sought for formulating new welfare policy as part of substantial reforms, which started to be implemented from mid July 2013. And re the comments by Ms Power in the letter from 27 February 2014, fair questions must be asked, what were the subsequent email and phone contacts about, when Dr Bratt was meant to correspond only about confirming travel arrangements and conference details? Once those events had taken place, one would have thought there was no further correspondence needed for that purpose. I presented you evidence of Dr Bratt and Dr Mansel Aylward making joint presentations and participating in media interviews together, and Dr Bratt did so as Principal Health Advisor for MSD. This can hardly be described as contacts only of a “personal” or “private” nature! Even MSD’s response from 12 November 2014 concedes that “many” contacts were “personal”, but that also means not all. The information in your letter from 22 Mai implies there were some emails kept. So not all emails from the referred to period can have been deleted after all.”
The requester went further in Paras [15] and [16] of his letter and explained other efforts he had made, and issues that remained:
“[15] I can inform you that the same issue was raised with the Chief Archivist Marilyn Little, and I will attach correspondence in that matter to this letter, which I will also send to you by email. One of her response letters was dated xx March 2015, and on that same day she wrote to Mr Brendan Boyle, also providing the Ministry with the applicable General Disposal Authorities (GDA) for records management and maintenance in the public service. I presume I have not received the guidance you mention in your letter from MSD, as they seem to assume, that I have them already. A second letter from Marilyn Little is dated xx April this year, and regrettably sees no reason to further investigate the contradictions I observed in comments received from MSD in this matter. I strongly suggest your Office of Ombudsmen looks into this, as there are so many conflicting claims and comments on record now, none of them appear to reveal the whole truth about what records Dr Bratt kept of his communications and correspondence with Professor Mansel Aylward and with Dr David Beaumont. I strongly suggest you consult with the Chief Archivist at Archives New Zealand about what action to take, to establish what has really gone on at Dr Bratt’s Office. I remind you of information I sent you by way of reference material and attachments with my letter from 03 December 2014, showing how much Mansel Aylward was involved in consulting with MSD and the government on welfare reforms. He did not just visit New Zealand to play golf with Dr Bratt, or to “entertain” himself and others by holding a couple of brief speeches at GP conferences, followed by mostly private contacts of whatever types of lesser relevance. Paula Bennett heavily relied on him and his advice to the Health and Disability Panel set up to consult on welfare reform matters in her ‘Speech to Medical Professionals’ on 26 September 2012. Therefore Mansel Aylward was involved in assisting policy formation by the government!”
“[16] In my original O.I.A. request from 16 January 2014 I did not ask for mere scheduling or diary type details about Dr Bratt’s contacts with Professor Mansel Aylward and other named professionals. I asked for “information on the times, dates, types of and purposes of contacts, meetings and communications (including correspondence)”. Nowhere did I talk about ordinary scheduling details for bookings for travel and the likes. I expected information about when Dr Bratt had meetings with Mansel Aylward and Dr Beaumont, and about when and how they corresponded about particular matters (purposes) involving their professional roles and activities. The fact that Dr Bratt and Mansel Aylward prepared and gave joint presentations to GP conferences and the likes, that they jointly faced up to a ‘NZ Doctor’ journalist to answer questions about their work, and that they professionally worked together in other ways, and early last year also met in their professional capacities in the UK and Europe, that proves that contacts and correspondence were not just “personal” and “private”, and that the details I asked for should have been presented in relation to such activities. Details about these activities will have been recorded, and should hence be available. Again, I fear that MSD is taking advantage of provisions in the O.I.A. to avoid more transparency in these matters.” “
At the end of Para [18] he then wrote:
“Most certainly I seek the information I asked for under ‘Question 10’, as I explained above, the Ministry has provided 3 different, somewhat contradictory comments to it, and has refused to deliver any significant information, at one time claiming all emails and contacts were deleted by Dr Bratt. I request your Office takes actions in this matter, to conduct an investigation into the conflicting explanations that have been provided by the Ministry, as some records should have been kept on Dr Bratt’s professional meetings and correspondence with Professor Aylward, perhaps lesser so with Dr David Beaumont. Professor Dr Aylward acted as advisor on welfare reform policy to MSD. As you mention yourself in your letter from 22 May, not all emails appear to have been deleted after all, as he only deleted those that were “personal in nature”.
As we read under Chapter E) above (towards the end), the Ombudsman strangely saw no need to further investigate the matter of Dr Bratt deleting emails for a whole period, even though serious concerns and evidence were presented to him. This does though remain to be a matter of huge concern as it may involve serious breaches of the Public Records Act, because so-called ‘General Disposal Authorities’ issued by the Chief Archivist appear to have been breached. We are informed the matter has again been raised again with the Office of Ombudsmen, now with the Chief Ombudsman, and a final decision on a new complaint will need to be awaited and analysed in due time.
G) FINAL CONCLUSIONS
Having read all the correspondence in question, from the requester, from MSD, and from the Office of Ombudsmen, the whole matter is in our view a blatant cover up of the truth behind the present government’s and the Ministry of Social Development’s agenda for welfare reforms, including work capability assessments of sick, injured and disabled on benefits, which is of course administered, implemented and enforced by MSD’s department Work and Income NZ. Dr Bratt has as a senior advisor been involved in various activities, in consultations and has conducted correspondence with other senior external advisors, details of which MSD is determined to withhold from the public. The deletion of emails, which clearly mostly included such correspondence on a range of administrative and health advisory matters, by Dr Bratt as Principal Health Advisor, is in our view an illegal act, in breach of the Public Records Act 2005. We understand it has now been followed up in the form of a formal complaint to the Chief Ombudsman under the Ombudsmen Act 1975.
We can see from this how MSD do all that is within their powers, to frustrate the release of official information they consider as highly sensitive, and even when information is made available, it is only done so in very summarised, abbreviated form, and often basically “drip fed”, after a requester involves the Office of the Ombudsmen. Given the high work load and lack of resources the Ombudsmen have, MSD can rely on any complaints taking a long time to be processed, so by the time any further details may need to be addressed, the complaint matter may be deemed less relevant, given the time that has lapsed since it was raised.
The Ombudsman has in our view in this case also not acted in accordance with his responsibilities under the Ombudsmen Act, as he should have felt compelled to further investigate matters, particularly in regards to Dr Bratt’s deletion of “all emails” for a certain period. The information and evidence that was presented to both the Chief Archivist and the Ombudsman should actually have warranted more action, but there is an evident lack of motivation by both Offices, to take on new complaints, as they have already too many issues to work with. As a separate complaint has some time ago been filed with the Chief Ombudsman by the requester, we will await the outcome of that with great interest, although this is likely to take at least a year or two, to be resolved.
Quest for Justice
09 August 2015
Please find here a link to a downloadable PDF copy of the recently updated post based on the original post:
msd-dr-bratt-present-misleading-evidence-on-worklessness-and-health-publ-post-19-09-16
Other posts of relevance to study:
MEDICAL AND WORK CAPABILITY ASSESSMENTS – BASED ON THE CONTROVERSIAL BIO PSYCHO-SOCIAL MODEL
‘The Health and Disability Panel’ and its hand-picked Members
DESIGNATED DOCTORS – USED BY WORK AND INCOME, some also used by ACC: The truth about them
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part A
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part B
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part C
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part D
(more parts available after a to d)
ADDENDUM 1: UPDATE ON THE ABOVE MENTIONED NEW OMBUDSMAN ACT COMPLAINT ABOUT DR DAVID BRATT DELETING “ALL” EMAILS, WHICH APPEARS TO HAVE BEEN IN BREACH OF THE PUBLIC RECORDS ACT AND RELEVANT AUTHORITIES (25 AUGUST 2015):
On 21 August 2015 the complainant and former O.I.A. requester received a response from Ombudsman Prof. Ron Paterson, dated 17 August 2015. In his letter the Ombudsman referred to that new complaint under the Ombudsmen Act 1975 from 07 August, and stated he would not start any new investigation of a complaint presented by the requester at the time, giving limited resources and other still active complaints in progress as reasons! He insisted the requester should instead raise the matter with MSD and their Chief Executive, who have though already and repeatedly made clear they would not comment any further on the matter.
So the Ombudsman himself is refusing to investigate a matter where the Principal Health Advisor Dr Bratt deleted ALL emails for a period, which he exchanged with a senior external Advisor, being Prof. Mansel Aylward from the UK, in his capacity as Advisor for MSD! It appears Ron Paterson, a former Health and Disability Commissioner in New Zealand, sees NO need to get answers on an apparent breach of public record keeping, for which MSD gave three conflicting explanations, like Dr Bratt only deleted “private” emails, or did delete them, while he was not acting as Principal Health Advisor.
The complaint presented all relevant details and evidence, and asked for clarifications, as the conduct was considered being illegal and unacceptable. With the Ombudsman refusing to act and to fulfill his function and responsibilities under the Ombudsmen Act, we have an indeed scandalous state of affairs, we reckon!
The whole matter deserves a separate post, but given time restrictions, I will attach a copy of that letter here for people to read and draw their own conclusions from:
Ombudsman, Complaint abt Dr Bratt deleting emails, refusal to investigate, R. Paterson, 17.08.15
Here is a high-lit version:
Ombudsman, Complaint, Dr Bratt deleted emails, refusal to investigate, R. Paterson, hilit, 17.08.15
Final Note: The matter will be followed up, and there will be more t come!!!
ADDENDUM 2: “THE ‘INVESTMENT APPROACH’ IS NOT AN INVESTMENT APPROACH”, ARGUES BILL ROSENBERG AS ECONOMIST FOR THE COUNCIL OF TRADE UNIONS (CTU), IN A PAPER PUBLISHED 16 SEPT. 2015 (05 OCTOBER 2015):
Not only is there a lack of medical scientific evidence to justify and support the draconian new approaches that MSD and their main department WINZ now use to pressure people on benefits to return to employment a.s.a.p., the much hailed new “investment approach” the government uses in social security to ram through “reforms” is just as flawed. This has been noticed by Bill Rosenberg who published a paper for the CTU, which I understand ‘Scoop’ have also already reported on. He is the CTU’s Policy Director and Economist (often also consulted by leading media), and he has published a must read paper, which reveals how the government’s version of an “investment approach” is not meeting standards used in other areas, for instance the insurance industry.
The government’s approach is flawed, and seems primarily designed to simply reduce the costs for government, without taking into consideration wider implications, like various risks, costs or in some cases also benefits for the individuals, that MSD and WINZ work with.
Here is a link to that interesting paper on this, well worth a read, as it proves again, we are presented rather misguided, insufficiently researched and poorly considered policy, that is also based on misrepresentation of available data and thus misinforms us. The government is keen to make things look better for itself and its agencies, but does not really deliver what is being claimed:
Click to access Investment%20Approach%20is%20not%20an%20investment%20approach%20-%20Rosenberg_0.pdf
And other needed, overdue, reliable evaluation information is still being withheld by the government, as this question from 17 Sept. 2015 in the House of Representatives, put by Carmel Sepuloni (Labour’s spokesperson on Social Development) to the Associate Minister for Social Development shows:
http://www.inthehouse.co.nz/video/39670
Others asked questions before, how the evaluation of reforms and outcomes was going:
http://publicaddress.net/speaker/how-is-government-evaluating-its-welfare/
The public are not given the transparency and accountability they deserve!
ADDENDUM 3: “BACK-TO-WORK PROGRAMME LABELLED A FAIL”, NZ HERALD REPORT FROM 17 SEPTEMBER 2015 (added 05 Nov. 2015):
In the meantime we have been getting the first solid media reports revealing information that the MHES (Mental Health Employment Service) and SPES (Sole Parent Employment Service) – that MSD has contracted out with various private service providers – are failing.
The ‘New Zealand Herald reported on it under the following title:
‘Back-to-work programme labelled a fail‘, and the full article can be found via this link:
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11514141
Extracts:
“A multimillion-dollar scheme to get beneficiaries with mental health conditions and sole parents back to work appears to have flopped. Work and Income has already spent more than $7.3 million on the new services, part of wider reforms. Up to 2000 people at a time are on the trial programmes, which offer extra services such as employment placement and in-work support. The aim is to help beneficiaries return to and stay in work.”
“A full midpoint evaluation of the programmes, which began in September 2013 and will run until next June, has been delayed until later this year. But an April 7 briefing to Social Development Minister Anne Tolley, released to Labour under the Official Information Act, shows that those on the programme did not stay in work for longer, or earn more.”
“”At the 12-month evaluation point in September 2014, the impact monitoring showed no detectable impact on off-benefit outcomes or earnings outcomes for the Mental Health Employment Service contracted trial compared to internal Work and Income services,” the report said. A 3 per cent lift in off-benefit outcomes for sole parents was noted, compared with a control group, but this was not statistically significant.”
“Beneficiaries advocate Kay Brereton said the underwhelming results showed people pushed off benefits were motivated to find work. “Unfortunately the ministry comes from a different direction – the only reason they haven’t got a job is that they are not trying hard enough.” “
Own Comments:
If this new approach, based on the ideas that work is “therapeutic” and that it has “health benefits”, is after all not bringing the supposed great “benefits”, then what must we think of it? Either there is something wrong with the way the programs are run, or the whole approach must be put into question! We are not surprised, as the evidence that is so often referred to is simply questionable – if not wrong. As written above, much evidence is not really what it is claimed to be. Besides of all that, it is no wonder then, that we get no reliable data, or no figures at all, on the actual numbers of referred persons to those services, who managed to get work and stay in work for any significant time. MSD have been extremely reluctant and very uncooperative in providing sought information upon O.I.A. requests.
The agenda seems to be losing its credit and seems to slowly falling apart.
ADDENDUM 4: THE NEW ZEALAND MEDICAL JOURNAL’S ‘VIEWPOINT’ BY GORDON PURDIE ON INCORRECT INFO USED BY DR BRATT AND THE AFOEM; VOL. 128 NO 1425, 20 NOV. 2015 (added 19 May 2016):
So here is some interesting stuff to read from the New Zealand Medical Association website, showing us how Gordon Purdie, Sen. Research Fellow at the Dean’s Department at the University of Otago, Wellington, has also found that the “research findings” Dr Bratt uses, are not reliable and incorrect.
Look up the ‘Viewpoint’ published in the New Zealand Medical Journal from 20 Nov. 2015:
https://www.nzma.org.nz/journal/read-the-journal/all-issues/2010-2019/2015/vol-128-no-1425-20-november-2015/6729
“Is the statement that if a person is off work for 70 days the chance of ever getting back to work is 35% justified?”
Here is just a brief extract:
“The incorrect statements about the chance of ever getting back to work are being presented to general practitioners (GPs) continuing medical education conferences in the context certifying people as unfit for work, together with statements like the ‘benefit’ is “an addictive debilitating drug with significant adverse effects to both the patient and their family (whānau)”.13 They are being presented to GPs in the context of assisting patients to safely stay at work or return to work early.4 These appear to be encouraging GPs to assess injured and unwell patients as having capacity for work and not issuing medical certificates for work incapacity. This could result in the cessation of welfare benefits or injury compensation. When these patients lack the capacity to work, they could experience increased financial hardship. For example, people might move from injury compensation to an unemployment benefit, and those without benefit entitlements to no income.”
Read the whole lot, it proves that we are served endless misrepresented information with the “science” they use to justify assessing many seriously sick and disabled as “fit for work”, even when they have no realistic chance of getting a job. Especially mentally ill will be put at great risk!
Dr Bratt, Principal Health Advisor at MSD and acting for WINZ, and his “expert” sources have been exposed, yet again.
Here is a link to a downloadable PDF:
WORK + INCOME IS DENYING EXTRA ADVANCES FOR EMERGENCY DENTAL TREATMENT
Posted by nzsocialjusticeblog2013 in Health and Disability Commissioner and WINZ, MSD Policy and Processes, WINZ and MSD in the Media on 05/05/2015
WORK AND INCOME NZ (short WINZ) HAVE ACCORDING TO MEDIA REPORTS SINCE LAST YEAR BEEN CUTTING BACK ON EMERGENCY DENTAL TREATMENT ADVANCES FOR THOSE ON BENEFITS OR LOW INCOMES
This is hard to believe, but it is according to reports just out true. Radio NZ National has reported, that beneficiaries needing emergency dental treatment can apparently no longer access advances for costly emergency dental treatment. According to newly obtained official information from MSD (the Ministry of Social Development) this new approach has been taken since last year. Only about $ 300 per year are available to beneficiaries to cover dental treatment costs. Now those needing more expensive work done, like root canal treatments, crowns or bridges can no longer get advance loans from WINZ to cover for this.
They now either have to negotiate installment payments with their dentists or try and borrow money elsewhere. Some will not be able to get credit and may decide to rather have their teeth pulled out. So poverty will become more visible again, with people walking around with gaps in their dentures, I presume. This must be one of the results of their new “investment approach” (saving costs where-ever they can).
Radio New Zealand National reports:
‘Shrinking WINZ dental loans’
05 May 2015, Demelza Leslie
http://www.radionz.co.nz/news/national/272803/shrinking-winz-dental-loans
EXTRACT:
In the 2010/11 financial year, Work and Income loaned $9,398,451 to beneficiaries for emergency dental work. Over the past year that figure was slashed to $45,100, official documents showed.
Ms Brereton does not think there has been any specific changes to policy, except Government pressure on Work and Income to shrink beneficiary debt.
She said when WINZ got mean, beneficiaries were forced to go loan sharks and financial companies for money.
Dental Association chief executive David Crum said some beneficiaries required quite extensive work. He said they could only ignore a toothache for so long.
“Particularly when you get an infection or pain, that changes the picture dramatically,” he said.
Dr Crum guessed beneficiaries were organising time payments with their dentist or were getting the funding from somewhere else.
Here is also an audio from Morning Report on RNZ, covering the same:
http://www.radionz.co.nz/national/programmes/morningreport/audio/201753044/advocate-warns-beneficiaries-could-be-going-to-loan-sharks
Read and listen to the full original reports via the links to the RNZ National website, offered above!
Own Comment:
What next, I dare to ask, and what does this tell us about the supposed “supports” they claim to give to sick, injured and disabled who they want to get into any kind of “suitable” work? There is little evidence of extra “support” being offered, besides of more investment in “more intensive case-management”, as this post already revealed:
What great “job prospects” will a WINZ client have, with gaps in his or her teeth? Let us also not forget the tax cuts that were favouring the higher earners and wealthy a few years ago, and how the weak and poor are asked to foot any budget shortfall to achieve a “more balanced budget”.
Author: Marc
(a similar post has been posted on ‘ACC Forum’)
IMPORTANT UPDATE: OIA CHAOS AT THE MINISTRY OF SOCIAL DEVELOPMENT – WRONG DATA RELEASED TO MEDIA (06 MAY 2015)
MSD ARE EXPERIENCING A BIT OF “CHAOS” WITH THEIR DELIVERY OF OFFICIAL INFORMATION ACT RESPONSES:
Today I read on the blog of the Green Party, that there appears to have been some misleading information that was sent to media (Radio NZ National) in form of an Official Information Act response by MSD:
‘OIA chaos in the Ministry of Social Development’
https://blog.greens.org.nz/2015/05/06/oia-chaos-in-the-ministry-of-social-development/
So I must concede, that the information I and others relied on, was not correct. There has been a letter provided by MSD, stating clearly a mistake of sorts was made, and providing also the ACTUAL figures for emergency dental treatment, including dental treatment paid for by way of special advance payments, and otherwise by Special Needs Grants, the latter apparently for less urgent treatments.
The letter has been made available via this link:
Click to access correctedMSDdentalOIA.pdf
Yes, a person I know also happened to get an advance nearly a year ago, for over a thousand dollars, for more expensive emergency dental treatment, and then had no problems, that was mid year. Today a person I also know went in for an advance payment, and that was close to 400 dollars worth, and that was also processed.
Hence apologies for rushing to write the post above, and for having relied on one media report on Radio NZ, which was relying on the incorrect information. I try to do all to avoid such mistakes, but when other, usually reliable media, misreport some information that was not complete or was misleading from the start, there is only so much we can do.
So MSD and WINZ do actually continue to offer these advances, but it appears also, that they seem to be more careful in granting advances and Special Needs Grants.
We conclude from all this, MSD do not have their OIA information service under control, and that only adds to concerns re other parts of their responsibilities, that certainly deserve attention and criticism.
You can rest assured though, that other information provided on this blog has been well researched and is generally very reliable!
Here is the PDF with a copy of the new, updated O.I.A. response from MSD (dated 06 May 2015):
MSD, letter correcting O.I.A. info release, correctedMSDdentalOIA, 06.05.15
MENTAL HEALTH AND SOLE PARENT EMPLOYMENT SERVICES – MSD WITHHOLDS O.I.A. INFORMATION, THAT MAY PROVE THEIR TRIALS A FAILURE
Posted by nzsocialjusticeblog2013 in Medical and Work Capability Assessments, MSD - Official Information Act releases, MSD Policy and Processes on 10/04/2015
MENTAL HEALTH AND SOLE PARENT EMPLOYMENT SERVICES – MSD WITHHOLDS O.I.A. INFORMATION, THAT MAY PROVE THEIR TRIALS A FAILURE
Contents:
A) Introduction
B) O.I.A. response from MSD dated 26 February 2015
C) Information that has not been provided by MSD
D) Interpretation of – and conclusions from – the obtained information
E) Final conclusions
An updated version of this post, containing also ‘Addendums’ 1 to 4 at the end of it, dated 4 Dec. 2017, can be found and downloaded as PDF via this link:
MHES + SPES, MSD withholds O.I.A. info that may prove trials a failure, post, NZSJB, 14.04.15, upd. 04.12.17
A) Introduction
In an earlier post we presented some comprehensive information about the Ministry of Social Development’s (MSD’s) newly introduced, contracted ‘Mental Health Employment Services’ (MHES) and also ‘Work Ability Assessments’ (WAA). That post contained a large volume of revealing information that had been obtained through a number of requests under the Official Information Act 1982 (O.I.A.). Other valuable information was found from various reliable sources via extensive online and other research. A thorough analysis was provided to make sense of the information.
Part “E).” of that post, titled “OFFICIAL INFORMATION ACT REQUESTS AND ANSWERS RECEIVED FROM MSD”, contained some new and some older information that had been provided by MSD. Under Part “E.1.:” O.I.A. requests from 16 January 2014 were presented alongside MSD’s answers from 24 April 2014. Part “E.3.:” “Earlier O.I.A. request and replies from MSD” provided further information from MSD, that also revealed details about MSD’s ‘Designated Doctors’, Regional Health Advisors (RHAs), Regional Disability Advisors (RDAs), Health and Disability Coordinators (HDCs), the Principal Health Advisor (PHA) Dr David Bratt and Principal Disability Advisor (PDA) Anne Hawker. That particular information was in response to specified requests from late December 2010 – with answers from March 2011, and yet further requests and information provided up to 12 July 2013. The information also included details about “designated doctor training”, which offered a glance at how MSD actually works with their selected pool of doctors, used for conducting medical examinations and assessments in the form of “second opinions”. More revealing information on that particular topic had already been obtained elsewhere, showing that ‘Designated Doctors’ can hardly be as “independent”, as is usually claimed by MSD and Work and Income NZ (WINZ).
Here are a few links that take you to the earlier parts of that very insightful, informative post:
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part A
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part B
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part C
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part D
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part E
(see more parts of that major “post” on ‘nzsocialjusticeblog2013’)
In order to keep track on what is happening with the “trials” that MSD has started running for the above mentioned services, and to also seek further important information, a further O.I.A. request was made by a trusted person on 01 October 2014 (sent by email 02 October). New up to date information was requested regarding the Mental Health Employment Service (MHES), for the separately run Sole Parent Employment Service (SPES) and re a range of other matters of major concern. It took MSD nearly 5 months to finally respond to that request in writing on 26 February 2015. Some asked for information was once again either being withheld under section 18 of the O.I.A., or simply not provided at all, without any explanations. Besides of some additional, new information relating to the MHES, MSD did present some information on the ‘Sole Parent Employment Service’ and re a few other important matters. This information has now been made available to us, by the requester who wishes to remain anonymous.
In the following we present the newly obtained information, primarily relating to the MHES and SPES. Some of the other information is also very revealing and interesting, showing how MSD does not seem to be too concerned about the wellbeing of clients referred by WINZ to outside providers. There is furthermore solid information showing how sanctions for obligation failures have basically “exploded” since the new welfare reform became effective in mid July 2013. Other information shines light on the increase of inappropriate abuse, threats and even assaults that WINZ staff suffer, which can only be explained through the draconian measures that have over recent years been enforced. WINZ staff are working at the coal-face and therefore face the brunt of client frustration and anger.
B) O.I.A. response from MSD dated 26 February 2015
The new information seems to show, that the so-called MHES providers do not appear to be delivering the outcomes that were anticipated and that were so often promised as the expected outcomes by the Minister or MSD spokespersons. Some earlier up-beat comments to media and the public have not been backed up with any reliable figures. For instance did MSD’s Director for Welfare Reform, Sandra Kirikiri, announce on ‘Nine to Noon’ on Radio NZ National on 15 April 2014, that the trial for the MHES had up until then been so successful, that MSD and WINZ were planning to expand the service to reach more clients with “common” mental health problems.
The newly obtained figures, which are admittedly a bit unclear and can only explain so much, do though appear to show us another picture. That is unless the figures supplied with the new O.I.A. response are not just for the month October 2014, but for the whole time period since the introduction of that “service” in September 2013. In that latter case the outcomes would not look all that negative. But as the response by MSD raises more questions than answers, a clarification on the figures has been sought from MSD, by way of a complaint to the Ombudsman. That complaint also raises issues with the withholding of other information, some without any explanations. As an earlier OIA response from MSD dated 24 April 2014 (see attached PDF with a copy, re question/answer number 5, page 3) mentioned that 328 participants had (as at 27 Jan. 2014) ended their participation with a provider, and only 65 had been placed into jobs, the newly provided figures from 26 February this year seem to indicate that they do NOT cover the whole period since the MHES started in late 2013.
MSD did actually not fully answer question 4 from the request dated 01 October 2014, and has given NO figures on how many participants had actually been placed into jobs. Anyway, at the end of October 2014, out of 534 fully enrolled participants, it was 365 of them who “exited” the service due to “end of 6 months service” and 40 who did so due to “medical reasons”. A number of participants left the service for a various other reasons. Again, without any figures for successful employment placements it is impossible to properly establish the “success” of the service. But it seems that MSD is intentionally withholding information, or is presenting it in a way to confuse the situation. It is certainly very hard to believe that out of the total of 2,577 persons with “mental health conditions” referred to the service only 534 could not be placed into lasting jobs. Similar questions may also arise re the Sole Parent Employment Service, for which similarly poor data has been provided. Historic data on certain previous trial projects where attempts were made to place persons with mental health issues into jobs showed that 60 percent was considered “successful”. In view of that, it is not credible to believe that only 534 persons of 2,577 could not be employed.
Other information that has been provided shows a doubling of “obligation failure sanctions” within just one year since the new, major, draconian welfare changes were introduced and implemented from mid July 2013 onwards. Also has there been a marked increase in reported incidents of abuse, threats and assaults by clients towards WINZ workers at the front-line, since about 2010, when the National Party led government and Minister Paula Bennett introduced the so-called “Future Focus” policies. Then the drive was started to put extra expectations and pressures on sole parents to resume at least part time work, and also did WINZ start to increasingly re-assess sickness beneficiaries for their ability to work. The worrying incidents of client misconduct increased significantly in some regions until 2013. The new, radically changed welfare regime with new benefit types, with new social obligations, with drug testing and new criteria and expectations for work capability of sick, injured and disabled took effect in July 2013. While there appears to have been a moderate overall decrease in incidents of abuse, threats and assaults during 2014, this may only have been due to stringent new security measures that were put into force for the last quarter of that year, after the tragic Ashburton WINZ Office shootings. The increase in inappropriate abusive, threatening behaviour and assaults or wilful damage of some clients towards WINZ staff will not surprise informed insiders, and it has already been taken note of in various media reports. Once the trial of murder accused Russell John Tully commences in May this year, we may perhaps find out more about how MSD and WINZ work with some “difficult” clients who may also have serious mental health and other sickness issues. That sad incident shook up the nation, but as we know, very few people, certainly not the government or media, bothered asking any questions about what may have led to this killing of two WINZ workers. We would dare to argue, the present harsh and punitive social security system and its creators bear some responsibility.
The specified information that was sought, and the information provided by MSD
The specified information that had been asked for in the O.I.A. request from 01 October 2014 included the following – shown in normal type, and the Ministry of Social Development responded in their letter dated 26 February 2015 with the corresponding answers and information shown in italics:
O.I.A. request 1:
Detailed information about the names, the head-office and on site service provider addresses, and the particular services offered, for all the providers the Ministry of Social Development (MSD) has since mid to late 2013 entered contracts with, to:
● provide so-called “Mental Health Employment Services” (MHES),
● provide OTHER supported employment services for persons on health related benefits with other health conditions and/or disabilities,
● provide supported employment services for sole parents with children on the ‘Sole Parent Support’ benefit category.
Response by MSD to request 1:
The Contracted Case Management service is designed to return beneficiaries to employment by providing wraparound services that include employment-related case management, employment placement, and in-work support through an external provider.
There are two services:
1. Mental Health Employment Service for people:
● with a common mental health condition
● receiving Jobseeker Support
● with part-time or deferred work obligations.
2. Sole Parent Employment Service for people:
● who are sole parents
● receiving Jobseeker Support
● with full-time work obligations.
The following table shows the names and addresses of the Sole Parent Employment Service providers. The Mental Health Employment Service providers was previously provided to you on 24 April 2014.
Auckland:
In-Work NZ
10 Pioneer Street, Henderson, Auckland
Quality Education Services
10D Norman Spencer Drive, Auckland
Skills Update
59 Tidal Road Mangere, Auckland
Bay of Plenty:
APM Workcare
331 Rosedale Road, Albany
Alpha Consultants
78 Edgecumbe Road, Tauranga
Choice Consultancy
5 Rauhea Street, Brookfield, Tauranga
Kaja Enterprises (The Job Centre)
65 Onslow Street, Kawerau
Canterbury:
APM Workcare
331 Rosedale Road, Albany
Catapult Employment Services Trust
478 Barrington Street, Addington, Christchurch
Maximus Solutions
Unit 16, 35 Riccarton Road, Riccarton, Christchurch
Steph Mainprize Consulting
72 Oxford Street, Lyttelton
East Coast:
Career Change
54A Tom Parker Avenue, Marewa, Napier
First Choice Employment Services
257 Awapuni Street, Gisborne
Nelson:
APM Workcare
331 Rosedale Road, Albany
Business Management School
10 Church Street, Nelson
Community Colleges NZ
140 East Belt, Rangiora
Golden Bay Work Centre Trust
84 Commercial Street, Takaka
Taranaki:
FEATS Limited
64 Centennial Drive, New Plymouth
Training for You
144 Ingestre Street, Whanganui
Wellington:
In-Work NZ
10 Pioneer Street, Henderson, Auckland
Acts Institute
65 Dudley Street, Lower Hutt
APM Workcare
331 Rosedale Road, Albany
O.I.A. request 2:
Details about the fees payable by MSD, the agreed fee structure, the terms for payment of fees, the outcome expectations in the various providers, that were agreed to between MSD and the types of individual providers as listed under question 1. above. This is also in consideration of established “particular service intensity categorisation”, with consideration about other similar categorisations, and details about any such used categorisations would be appreciated.
Response by MSD to request 2:
The fee structure for the Mental Health Employment Service provider’s contract was provided to you on 24 April 2014. Below are the fees structure details for the Sole Parent Employment Service.
The Ministry pays the provider a one-off Enrolment and Activity Fee at the rate specified in table A for beneficiaries by Service Intensity rating enrolled in the Service. Note that “SI” is Service Intensity; “Very High SI – subsidy accessed” is when the provider will receive the above at six and twelve month milestones if still in continuous employment.
Table A – Enrolment and Activity Fee (GST Exclusive)
Medium SI Rating: $ 500
High SI Rating: $ 1,000
Very High SI Rating: $1,000
The Ministry pays providers an Employment Placement Fee where a person is commencing employment the rate specified in table B for people by Service Intensity and hours of employment.
Table B – Employment Placement Fee (GST Exclusive)
Hours of Employment – 20-29 hours per week:
Medium SI Rating: $1,125
High Rating: $1,875
Very High Rating: $3,375
Very High SI – subsidy accessed: $1,500
Hours of Employment – 30+ hours per week:
Medium SI Rating: $1,500
High Rating: $2,500
Very High Rating: $4,500
Very High SI – subsidy accessed: $2,000
The Ministry pays providers at the rate specified in table C for people by Service Intensity rating that have achieved 6 or 12 months continuous employment (defined as original or subsequent employer, no more than 10 working days out of employment and no interim return to benefit).
Table C – Continuous Employment Fee (GST Exclusive)
Hours of Employment – 20-29 hours per week:
Medium SI Rating: $563
High SI Rating: $750
Very High SI Rating: $1,500
Very High SI – subsidy accessed: $1,500
Hours of Employment – 30+ per week:
Medium SI Rating: $750
High SI Rating: $1,000
Very High SI Rating: $2.000
Very High SI – subsidy accessed: $2,000
O.I.A. request 3:
Relevant details about the provided “wrap-around services” that were already mentioned in media reports, such as an article in the “Herald on Sunday” on 30 June 2013 – titled “Govt will pay to shift mentally ill into work”, which are intended to support the clients that Work and Income (WINZ) refers to the various service providers as listed under question 1. above. I am in this question asking about “wrap-around services” that are provided by health-, disability- and/or addiction treatment and support service providers contracted by WINZ, or at least cooperated with through WINZ. What kinds of such extra clinical support services have been agreed on, who will pay for them, and what are the roles and expected qualifications of staff at those presumably external “wrap around service” providers that may offer health-, disability and/or addiction treatment and support services – in whatever types and forms? Detailed information in relation to the various types of providers and their services will be much appreciated, provided of course, such services are used.
Response by MSD to request 3:
The Mental Health Employment Service provides employment-related case management, placement and post placement support to assist participants to gain and maintain employment. Providers deliver these services using existing health and clinical support and where appropriate, support participants to access any additional support services that they may require.
The Ministry does not centrally hold information on the clinical support services being accessed through the service providers as these are particular to each beneficiary. The Official Information Act does not require me to generate new information on matters of interest to requesters in order to meet their request. Therefore I must refuse your request under section 18(g) of the Act.
The Ministry also does not hold the details of external providers staff, such as their roles and qualifications. As such, I am also refusing this part of your request under section 18(g) of the Act.
O.I.A. request 4:
Information in broken down detail, on how many beneficiaries suffering “moderate” mental health conditions, musculo-skeletal or other disabling health conditions, and also on how many sole parents on benefit receipt, have to this date been referred to such services as mentioned under question 1. above? Also how many were approached to consider being referred, how many agreed to be referred, how many refused to be referred, how many have been successfully placed into employment? How many have had to terminate their efforts working with providers of “Mental Health Employment Services”, or with any other type of supported employment services, and of them, for what reason did they do so? Records on this, preferably per month since commencement of the mentioned services, are requested, up to the most current month, otherwise per year. As some information on MHES was received some time ago, an update on the previous information is sought.
Response by MSD to request 4:
Mental Health Employment Service
Between September 2013 and October 2014, there have been:
• 2,577 people referred to a Mental Health Employment Service provider
• 7,293 people approached to participate
• 3,714 people agreed to participate
• 3,264 people who declined to participate.
As at the end of October 2014, 534 fully enrolled Mental Health Employment Service participants had exited due to the following reasons:
Reason ceased participation:
Client has left New Zealand: 2
Client moved elsewhere in New Zealand: 20
Client passed away: 1
End of six month service: 365
Unsafe to continue or client trespassed: 1
Change in circumstances, client no longer suitable for the service: 26
Circumstances making employment unlikely in the next six months: 24
Client is not contactable: 16
Client is not participating: 27
Client unable to achieve continuous or subsequent employment post placement: 13
Medical reasons: 40
Sole Parent Employment Service
Between September 2013 and October 2014, there have been:
• 2,542 people referred to a Sole Parent Employment Service provider
• 4,422 people approached to participate
• 4,327 people agreed to participate
• 95 people declined to participate
At the end of October 2014, 511 fully enrolled Sole Parent Employment Service participants had exited due to the following reasons:
Reason ceased participation:
12 months in-work support has ended: 1
Client has left New Zealand: 8
Client moved elsewhere in New Zealand: 13
Conflict of interest: 1
End of six month service: 271
Change in circumstances, client no longer suitable for the service: 72
Circumstances making employment unlikely in the next six months: 39
Client is not contactable: 19
Client is not participating: 43
Client unable to achieve continuous or subsequent employment post placement: 1
Medical reasons: 43
O.I.A. request 5:
Information on whether any referred Work and Income clients with mental health conditions, with musculo-skeletal or other disabling health conditions, suffered any significant medical problems (psychological, psychiatric or physical) upon having been referred to such service providers as mentioned above, and what types of problems were there, since such services started? Also in relation to this, if such cases occurred, what measures were taken by the provider and by WINZ, to offer support for the clients affected, and what records have been kept on this? Please provide relevant details for each month since these services were started, up to the most recent monthly update, provided such cases exist.
Response by MSD to request 5:
The Ministry does not record information pertaining to the wellbeing of a person following a referral to a service provider. As such this information is refused under section 18(e) of the Act as the information does not exist.
Please note that the Ministry only refers a person to a Mental Health Employment Service provider where the beneficiary has agreed to engage with a Mental Health Employment Service provider.
O.I.A. request 6:
Details about the names, head office- and service delivery site addresses, and the particular services being offered, by/of contracted providers to perform outsourced work ability and/or medical assessments on beneficiaries (or applicants for benefits) that commenced providing such new services from early 2014 until now. I refer to media reports in the ‘Otago Daily Times’ from 25 Oct. 2013, titled “Tests for disabled ‘flawed model’’’, and ‘Stuff.Co’, from 03 Nov. 2013, titled “Contractors to assess sick and disabled for work”, that mentioned some details on MSD entering contracts with such providers. As some information has already been provided on this by way of a letter dated 24 April 2014, I request and update on these services by Work Ability Assessment (WAA) providers, and the relevant information sought.
Response by MSD to request 6:
There have not been any changes to the Work Ability Assessment, and as such no further information to that supplied to you on 24 April 2014 is available.
O.I.A. request 7:
Information on what expectations Work and Income currently places on sick and disabled on health related benefits like ‘Jobseeker Support – deferred’, ‘Supported Living’, or applicants for such, in regards to meeting obligations to attend external examinations/assessments for medical conditions and work capability (done by Designated Doctors or WAA health professionals). Also what particular sanctions will be applied if a client objects to, or refuses to be examined or assessed by, a medical or health professional, which she/he will have been expected to see for this? Furthermore, in relation to this, what plans do presently exist to change or increase particular expectations and/or criteria for sick, injured and disabled persons on the mentioned health related benefits, to be referred to such work ability assessments? I appreciate your detailed response.
Response by MSD to request 7:
Information about work ability assessments was provided to you on 24 April 2014.
Work and Income does not refer Supported Living Payment beneficiaries for Work Ability Assessments. However, those in receipt of Supported Living Payment can have work preparation obligations if they have been assessed as having capacity to prepare for work.
Before Work and Income requires a person receiving Supported Living Payment to meet their work preparation obligations, they consider a person’s capacity to undertake the work preparation obligations.
Further information is available at:
http://www.workandincome.govt.nz/individuals/obligations/obligations-for-getting-supported-living-payment.html#Workabilityassessment7
O.I.A. request 8:
Information on what specific performance targets (e.g. in measured output criteria and numbers, like in successful referral numbers for clients, in cost savings achieved for MSD and/or WINZ, or in any other tangible, countable measure) do Work and Income case managers, branch office managers, Regional Health Advisors, Regional Disability Advisors, or for that sake staff collectively operating as individual WINZ branch office teams, have to meet, or are they encouraged to achieve? This question is in regards to clients being referred to, or placed into employment or training, like –
● ordinary unemployed beneficiaries on the ‘Job Seeker Support’ category,
● beneficiaries on ‘Job Seeker Support’ with a health issue and/or disability (i.e. on ‘Jobseeker Support – deferred’),
● beneficiaries in receipt of the ‘Supported Living Payment’ benefit,
● beneficiaries on Sole Parent Support.
Also in relation to this, are there any performance bonuses or other forms of financial or similar “rewards” or “benefits” paid to the mentioned staff of MSD at WINZ, even if these are not directly related to specific targets achieved, but in consideration of general achievements by the various staff or branch offices? Details about types of any annual or other bonuses, special awards, benefits and similar will be appreciated.
Response by MSD to request 8:
The Ministry does not pay bonuses to staff. The Ministry does not provide staff with additional leave in recognition of performance. Leave entitlements are determined by a staff member’s agreement and their length of service.
In 2011, some service delivery staff received a productivity dividend for meeting agreed group measures which included increasing efficiency and reducing work duplication. This payment was a contractual commitment which was agreed as part of the 2010-13 Terms of Settlement with the Public Servant Association. The payment focused on staff at Work and Income and Students, Seniors and Integrity Services. The last payment was made in December 2012.
The table below provides a breakdown of the number of people in receipt of a performance payment or a productivity dividend and the total paid between 2009/2010 and 2012/2013. In 2013/2014 one ‘at risk’ performance payment was made to a Ministry senior manager. The individual payment is withheld under 9(2)(a) of the Act to protect the privacy of the person.
Year 2012/2013:
Bonuses: 0
Performance Payments: $15,056 to 2 staff
Productivity Dividend: 3,237,270 to 4,004 staff
Year 2011/2012:
Bonuses: 0
Performance Payments: $13,400 to 2 staff
Productivity Dividend: 3,066,137 to 4,077 staff
Year 2010/2011:
Bonuses: 0
Performance Payments: $31,416 to 4 staff
Productivity Dividend: 0
Year 2009/2010:
Bonuses: 0
Performance Payments: $72,999 to 9 staff
Productivity Dividend: 0
There are no performance measures for staff to refer beneficiaries to contracted services. I am therefore unable to provide any information under section 18(e) of the Official Information Act 1982, as it does not exist.
Work and Income monitors its business indicators and the number of people on a benefit at a national, regional and service centre level. The measures and official statistics can be found in the Ministry’s accountability documents, which are publicly available on the Ministry’s and the Parliament website at http://www.msd.govt.nz and http://www.parliament.nz.
O.I.A. request 9:
Information on how many persons on health related benefits, such as ‘Jobseeker Support deferred’ or ‘Supported Living Payment’, have had their benefits reduced or stopped altogether, as a result of refusing to meet obligations, such as mentioned in question 7 above. Please provide figures per month, or otherwise per year, and per category, since those new benefit categories were introduced in mid July 2013.
Response by MSD to request 9:
Please find enclosed below a table that shows the number of obligation failure sanctions applied to working-age (18 to 64 years) Jobseeker Support – Health Condition and Disability and Supported Living Payment recipients from September 2013 to the end of December 2014. Note that this information is a count of sanctions, not beneficiaries as a person may have had more than one sanction imposed during the period.
Benefit Type: Supported Living Payment:
Quarter / number of sanctions:
September 2013: 4
December 2013: 5
March 2014: 9
June 2014: 13
September 2014: 8
December 2014: 10
Benefit Type: Jobseeker Support – Health Condition and Disability:
Quarter / number of sanctions:
September 2013: 509
December 2013: 715
March 2014: 681
June 2014: 1,036
September 2014: 1,031
December 2014: 965
O.I.A. request 10:
Details on how many persons on a health and disability related benefit, like formerly the ‘Sickness Benefit’, the ‘Invalid’s Benefit’, now the ‘Supported Living – deferred’ and ‘Supported Living Payment’ benefits, have to the knowledge of the Ministry of Social Development and/or Work and Income had their benefit receipt stopped or terminated, as a result of fatal self harm, of suicide or unexpected early death? A break-down of data on this in relation to each benefit category and causes of death will be appreciated, for each month and year (if available) since 01 January 2005 until now. That is of course, provided this information has been recorded.
Response by MSD to request 10:
While the Ministry is able to identify the number of benefits that have been stopped following the death of the beneficiary, the reason for death (where provided to Work and Income) is manually recorded on the beneficiary’s record.
Therefore I am unable to provide you with this information under section 18(f) of the Official Information Act. This section allows me to refuse a request where substantial collation and research is required to find the information that is requested. In this instance, to determine the cause of death, the Ministry would need to manually access and collate thousands of individual files. I do not consider this to be in the public interest as this would remove staff from their core duties and impact on the effective functioning of the Ministry.
O.I.A. request 11:
Information on what advice or expectations MSD has communicated to medical practitioners – like general practitioners (GPs) and also medical specialists (orthopaedic surgeons, psychiatrists, psychologists, and so forth), for them to consider when asking questions to, and when assessing health conditions and work ability of their patients who require a ‘Work Capacity Medical Certificate’ for benefit purposes? Have particular sets of questions been sent or presented to GPs, as a format to work with, have particular criteria been communicated, beyond of what is contained in the medical certificate forms, or the ‘Guide for Designated Doctors’. In regards to the latter, where can a current copy of that “guide” be found, as nothing could be found online on the Work and Income website.
Response by MSD to request 11:
Medical practitioners provide an assessment of the impact of the individual’s disability or health condition on their ability to undertake suitable employment. The assessment also provides information that may enable an individual to work towards returning to paid employment.
All guidance for medical practitioners on about the Medical Certificate is now provided online at: http://www.workandincome.govt.nz.
O.I.A. request 12:
Details about how many incidents where recorded by staff of Work and Income, where case managers or other staff felt threatened, intimidated, and also were they were even assaulted by distressed or angry clients, during the execution of their duties? If possible a break-down of incidents and types of issues per month, otherwise per year, would be appreciated, for the time from 01 January 2005 until now. If available, also please provide information on what types of benefits the clients were, when such incidents occurred and were recorded.
Response by MSD to request 12:
The State Sector Act 1988 and the Health and Safety in Employment Act 1992 outline the Ministry’s obligation to be a ‘good employer’, including the Ministry’s obligation to provide a safe working environment for its employees.
The Ministry places a high priority on the safety of its staff and the New Zealanders it serves. Our security policy is an essential component of the Ministry’s strategy to reduce risks, not only to staff, but also to our beneficiaries. Abusive or threatening behaviour towards Ministry staff is treated very seriously. Staff report all incidents to the security guard in their office and enter the incident in the Ministry’s incident reporting database. When appropriate, the incident is referred to the Police for investigation. The Ministry also provides follow-up advice and support for any staff involved in such incidents, including support through the Employee Assistance Program.
People who intimidate staff or other people on site by demonstrating aggressive and threatening behaviour will either be warned verbally or in writing. However, where warnings have been previously issued or in serious cases, such as assault or wilful damage to property, they will be served a trespass notice.
The following table provides the number of incidents across all Ministry of Social Development sites (excluding Child, Youth and Family residences) over the last four calendar years. The Ministry does not hold this information in such a way that can be recorded on between 2005 and 2010, per your request. Therefore, this part of your request is refused under section 18(f) of the Act as to provide you with this information would require a substantial amount of manual collation.
I have considered whether the Ministry would be able to respond to your request given extra time, or the ability to charge for the information requested. I have concluded that, in either case, the Ministry’s ability to undertake its work would still be prejudiced.
The data is based on incidents that cover the categories of abusive behaviour, arson, assault, breach of trespass order, criminal damage and unauthorised access. It does not include instances of burglary, theft, loss, graffiti, or loss of Ministry information. The incident categories are as per the Ministry’s ratings of incident severity.
Note:
PLEASE REFER TO THE FIGURES CONTAINED IN THE ATTACHED PDF FILE WITH THE AUTHENTIC ORIGINAL RESPONSE BY MSD, SHOWN IN A TABLE FOR CALENDAR YEARS 2011 TO 2014, PER REGION AND PER TYPE OF INCIDENT! THE TEXT FORMAT FOR THIS BLOG POST DOES NOT ALLOW FOR THE TABLE TO BE COPIED OR REPRESENTED IN A SUITABLE MANNER!
O.I.A. request 13:
Information on how many clients of Work and Income were trespassed from WINZ office(s) for inappropriate conduct of the types like mentioned under question 12 above. Also please provide information on how many clients were referred to the New Zealand Police and charged for relevant offences in relation to this. This information is also requested for the time from 01 January 2005 until today.
Response by MSD to request 13:
Before issuing a trespass notice Work and Income Service Centre Managers will first consider:
• the seriousness of the incident or offence committed
• whether it is the first incident or offence
• whether it is likely to happen again
• the person’s attitude after the incident and whether they are likely to heed a warning letter and change their behaviour.
If a manager believes the behaviour is likely to be repeated in the future, and that it will not be prevented by issuing a verbal or written warning, that person will be issued with a trespass notice. Please note that in cases of assault or wilful damage, a trespass notice is always served.
The physical addresses of all Ministry sites and service centres that are to be covered by the trespass notice will be specified on the notice. Trespass notices are issued by region, to prevent people from displaying similar behaviour in neighbouring sites. Trespass notices are valid for two years from the date they are issued.
Work and Income is committed to ensuring people subject to trespass notices continue to receive their correct entitlement to assistance. Once a trespass notice has been served, beneficiaries will be notified in writing and informed that they are no longer able to deal face to face with Work and Income. These people are advised that in order to prevent a breach of the trespass notice, they should appoint an agent to act on their behalf when dealing with the Ministry.
Where no agent is willing to act on the person’s behalf, or the person is not willing to have an agent, contact may be by telephone or email. Work and Income will work with them to put in place alternative arrangements.
People who have been trespassed and pose a high risk to the safety of Ministry staff may be referred to the Remote Client Unit. This unit provides specialist case management via phone, fax, email or mail. Where the person has no access to a telephone, contact may be made by letter instead.
The table below shows the total number of trespass orders in place for Work and Income sites, broken down by region, as at 30 June 2008, 2009, 2010, 2011, 2012, 2013 and 2014.
The Ministry does not hold this information in such a way that can be reported on between the years 2005 and 2008, per your request. Therefore, this part of your request is refused under section 18(f) of the Act as to provide you with this information would require a substantial amount of manual collation.
I have considered whether the Ministry would be able to respond to your request, given extra time, or the ability to charge for the information requested. I have concluded that, in either case, the Ministry’s ability to undertake its work would still be prejudiced.
Note:
PLEASE REFER TO THE FIGURES CONTAINED IN THE ATTACHED PDF FILE WITH THE AUTHENTIC ORIGINAL RESPONSE BY MSD, SHOWN IN A TABLE FOR CALENDAR YEARS 2008 TO 2014, PER REGION THE TRESPASS ORDERS IN PLACE! THE TEXT FORMAT FOR THIS BLOG POST DOES NOT ALLOW FOR THE TABLE TO BE COPIED OR REPRESENTED IN A SUITABLE MANNER!
The table below shows the total number of trespass orders issued for Work and Income sites, broken down by region, as at 30 June 2013 and 30 June 2014.
2013:
Region, number of trespass orders:
Auckland – 32
Bay of Plenty – 15
Canterbury – 18
Central – 12
East Coast – 19
Nelson – 11
Northland – 16
Southern – 12
Taranaki – 16
Waikato – 9
Wellington -16
Total: 176
2014:
Region, number of trespass orders:
Auckland – 22
Bay of Plenty – 24
Canterbury – 10
Central – 11
East Coast – 20
Nelson – 7
Northland – 13
Southern – 13
Taranaki – 15
Waikato – 12
Wellington -16
Total: 163
O.I.A. request 14:
Please also provide a current copy of the so-called resource manual ‘Medical Appeals Board – a resource for Board Members’. If that manual is no longer in use, a copy of the official replacement document in use will be appreciated.
Response by MSD to request 14:
Please find enclosed a copy of the document titled: Medical Appeals Board, Board Members Information Pack, dated July 2013.
I hope you find this information on a range of information about beneficiaries with health and/or disability issues helpful. You have the right to seek an investigation and review of my response by the Ombudsman, whose address for contact purposes is:
The Ombudsman
Office of the Ombudsman
PO Box 10-152
WELLINGTON 6143
Yours sincerely
……….(Signature)
Debbie Power
Deputy Chief Executive Work and Income
‘END’
Please see the attached PDF files with authentic scan copies of the above O.I.A. response from 26 February 2015, and the earlier one from 24 April 2014:
1. MSD, OIA rqst, MHES, WAA, other support services, reply, anon, hilit, 26.02.15.pdf:
MSD, OIA rqst, MHES, WAA, other support services, reply, anon, hilit, 26.02.15
2. MSD, OIA rqst, MHES, WAA, other support services, issues, reply, anon, 26.02.2015.pdf (unmarked copy):
MSD, OIA rqst, MHES, WAA, other support services, issues, reply, anon, 26.02.2015
3. MSD, OIA reply, CE, Ment. Health Emplmt Serv., Work Ability Assmts, compl. hilit, 24.04.14.pdf:
MSD, OIA reply, CE, Ment. Health Emplmt Serv., Work Ability Assmts, compl. hilit, 24.04.14
4. MSD, O.I.A. reply, D. Power, MHES, WAA, information, complete, 24.04.2014.pdf (unmarked copy):
MSD, O.I.A. reply, D. Power, MHES, WAA, information, complete, 24.04.2014.
For information received in response to request point 14 in the O.I.A. request from 01 Oct. 2014, see the post under these links:
Link to PDF document offered for downloading:
MAB Process, How MSD discretely changed it, further disadvantaging clients, NZSJB, 18.03.15
C) Information that has not been provided by MSD
From the above it becomes clear that MSD have only provided some of the asked for information and failed to provide other information that had clearly also been asked for. While there has been some information withheld under sections 18(e), 18(f) and 18(g), other information has simply not been made available, while NO explanation has been given for this. Some information may have been withheld for justified reasons, but other data should have been made available. I dare to claim that this selective answering to an O.I.A. request is not an oversight or a co-incidence!
The following issues have arisen regarding the information, that could and should have been reasonably expected, but that has not been provided, or has not been provided in a satisfactory manner:
Re request 1:
While detailed information about the providers of the ‘Sole Parent Employment Service’ (SPES) was given re their contract relevant head office addresses, NO information was presented about the on site (physical) service delivery addresses of both the ‘Mental Health Employment Service’ (MHES) and ‘Sole Parent Employment Service’ (SPES) providers. For instance APM Workcare will not be delivering all their services from their Albany head offices, and instead have various service locations for regions they cover. The same applies to some other providers. This may actually be an oversight due to the request not having been read properly, but one would have expected that MSD’s O.I.A. response staff members are capable of properly reading and understanding requests.
Re request 2:
MSD have delivered the much appreciated information on the fee structure for the ‘Sole Parent Employment Service’ (26 Feb. 2015), as was previously also done for the ‘Mental Health Employment Services’ (24 April 2014). But NO information was presented on “outcome expectations”, like for instance in the form of expected or anticipated percentages (or in other measurable forms that had been agreed on) for referred clients to such services, that would show how many of them are actually successfully placed into employment. We would expect that MSD would have expressed certain clear expectations to the providers, as part of agreements they made. Such expected “outcome” or “target” information should be made available, and if it does not exist, a short answer would have solved this. But that part of the request has simply not been addressed at all.
Re request 3:
MSD does as the Ministry (responsible for Work and Income) at least now clarify, that it does not itself offer access to – or provide – “wrap around services” by professional health-, disability- and/or addiction treatment and support service providers within the framework for the ‘Mental Health Employment Services’. It seems that MSD leaves it up to contracted providers to support participants to access any “additional services that they may require”.
But as Work and Income does generally have expectations that sick and disabled seek available treatment for treatable health conditions that may otherwise hinder them from finding and accessing employment, we are astonished that there seems to be no arrangement between the contracted MHES providers and MSD to gather information on who needs extra support.
The concept of ‘Mental Health Employment Services’ would appear to mean that this is employment focused support involving also the provision of “wrap around” mental health services. Hence we would expect that contracts between MSD or Work and Income and the providers would include the payment for services that the provider needs to supply to clients referred to them. This would appear to include certain additional “mental health support” services. As we had expected that agreements between MSD and the mentioned providers would cover this aspect as part of their “wrap around services”, we must ask why this information is also being withheld, or whether it does not exist at all, or whether it is also not “centrally held”.
One would have reason to believe that contractual agreements between MSD and the MHES and SPES do stipulate what minimum qualifications staff members employed by such service providers must have to deliver the “wrap around services” to participants. Hence we would at least have expected a mention of these particular qualifications and types of positions, not in relation to named individuals, just as information relating to the particular providers.
If these supposed “wrap around services” in a more clinical form of health support are indeed simply provided as part of the ordinary, accessible public health care services presently available through District Health Boards, MSD should provide a clear statement to that effect. This would then clarify that no extra spending is put into additional health services for WINZ clients. The health sector has been struggling in many areas for years, and one area that has not received sufficient funding is mental health treatment services for ordinary adults who are not prison inmates. We must bear in mind that many services only come with payable high fees, so the question will also be, would WINZ help covering these additional costs under the Disability Allowance? The reply leaves too many questions.
Re request 4:
MSD have provided numbers in a table on 534 “fully enrolled Mental Health Employment Service participants” that had “exited” the service as at the end of October 2014 for a number of reasons. But the information appears unclear and confusing. In the request point 4 it asks for broken down details on how many participants had to terminate their efforts working with providers of MHES, or with any other type of supported employment service, for whatever reasons – for specified periods. With that one would have expected information preferably per month since commencement of the services, and up to the most current month – or otherwise per year.
The numbers for people referred, approached, for those who agreed to participate, and those who declined are clear, but the request appears to not have been answered satisfactorily and appropriately when it comes to what the remaining figures in the provided table actually mean. There is a need for clarification whether the table on page 4 of the letter from 26 February lists ALL the “exits” of participants for the stated reasons that occurred for the whole period from the start of service delivery, up to the end of October 2014, or whether the figures are just for that one month of October 2014.
And NO information has been provided on those participants of either service, who have been successfully referred into employment. The table provided gives NO information on job placements, and whether they lasted for any significant, longer period.
In a response to an earlier O.I.A. request MSD stated on 24 April 2014 that at 27 January 2014 already 328 participants of the MHES had ended their participation with a provider, with no reason given as to why and how, and that only 65 clients had until then achieved an employment outcome. Given those earlier figures, the newly provided figures (from 26 February 2015) appear to not represent those for the whole period since the MHES started in September 2013, until October 2014, who exited the service for the stated reasons.
The same applies to the figures listed in the table on page 5, being for SPES participants. Are those figures perhaps also only for the month of October 2014, or are they for the whole period for which the services were being delivered? And how many of all the referred participants were actually successfully placed into employment for any significant, lasting period? We would also have expected an explanation as to what “end of six month service” means.
Again, only some of the O.I.A. request was answered, and the rest was not met, without giving any reason or explanation. This can hardly be seen as an “oversight” of the request made.
Re request 5:
In their response dated 26 February 2015 MSD stated: “The Ministry does not record information pertaining to the wellbeing of a person following a referral to a service provider. As such this information is refused under section 18(e).”
In MSD’s response from 24 April 2014 (to a request point 6 from 16 Jan. 2014) MSD stated: “To date there have been no recorded incidents where a client has suffered significant medical or psychological problems having been referred to MHES. If this situation arises, the service provider will inform Work and Income, who will take the appropriate steps to support the client.”
We cannot help but notice a “slight” contradiction between the two answers about virtually the same problem(s). In light of that we must ask, why could a clear enough answer be provided to the very similar request for information (request 6 from 16 Jan. 2014) in MSD’s letter dated 24 April 2014, and why is such information now suddenly no longer available?
Given such a contradiction in responses, a proper explanation and clarifications re this seems overdue. If a proper, clear response could be given on 24 April 2014, one would have expected a clear one also in the new response dated 26 February 2015.
Re request 6:
Again MSD refer to a former response they gave on 24 April 2014, where they provided contract related head office addresses for the MHES and the so-called ‘Work Ability Assessment’ (WAA) providers, but not the on-site service delivery addresses for these. Hence that part of the request has not been met. It should be expected that not only the main office addresses of the contracted providers, but also the addresses for the locations where they deliver their services are provided. The mere mention that the information was provided on 24 April 2014 is only partly correct.
Re request 7:
The request clearly asked for clear expectations WINZ currently places on sick and disabled on health related benefits, or applicants for such, in regards to meeting obligations to attend external examinations/assessments for medical conditions and work capability. The information and explanations given by MSD in a response from 24 April 2014 (page 5), in reply to an earlier request point 10 from 16 Jan. 2014, does not clearly enough state any forms of sanctions that may be imposed. When does a benefit rate get cut in half, or stopped altogether, if a person refuses or fails to cooperate, without “good and sufficient reason”, thus resulting in an “obligations failure”? A response with information clarifying that for instance would have been expected. But none was given.
Also has the request for information on any plans that may presently exist to change or increase particular expectations and/or criteria for sick, injured and disabled persons on mentioned health related benefits, to be referred to such work ability assessments, not been answered. If no such plans and no information about such plans exist, a brief comment in that regard would have sufficed. We are again left in the dark about what future plans in that area may already exist.
Re request 8:
The request for the specified official information has in this case also not been fully met. Not only was MSD asked for information on “bonuses” to staff, “additional leave in recognition of service”, or similar “performance measures”, but firstly for specific performance targets (e.g. successful referrals of clients into work, training and so forth), which may not be linked to any such “rewards”. Performance targets may be set for branches without bonuses and the likes being paid, simply as part of ordinary operational performance expectations, for all staff working with clients. There must be certain goals and targets that MSD sets itself and their staff, to achieve annually.
In a 22 minute long interview on Radio New Zealand National’s ‘Nine to Noon’ program on 15 April 2014 Director for Welfare Reform Sandra Kirikiri clearly stated to Kathryn Ryan, that MSD and WINZ case managers definitely have “targets” to meet, when working with clients, including such as those referred to MHES. See the following information re this:
Topic: “WINZ expands scheme to support unemployed with illness issues”
http://www.radionz.co.nz/national/programmes/ninetonoon/audio/2592666/winz-expands-scheme-to-support-unemployed-with-illness-issues
(Listen from 11 minutes and 45 seconds on, particularly between 12 minutes and the 10 to 15 following seconds! Miss Kirikiri most clearly answers, “they definitely have targets”!)
Given the comments by Sandra Kirikiri, we are led to believe that some “targets” exist, for achieving outcomes for clients, in some forms and numbers. That is the information that was asked for, and which has not been provided with the written O.I.A. response.
On page 7 in the response dated 26 February we read: “There are no performance measures for staff to refer beneficiaries to contracted services. I am therefore unable to provide any information under section 18 (e) of theOfficial Information Act 1982, as it does not exist.” But then it also states: “Work and Income monitors its business indicators and the number of people on a benefit at a national, regional and service centre level.”
In light of that information just mentioned, either Miss Kirikiri must be wrong, or the response in the letter from 26 Feb. 2015 must be wrong. What is the purpose of “monitoring” data, when this is also not used to work out achievable “targets”? This contradicting information does not give us much reason to trust what comes from MSD.
Re request 11:
The extremely limited information that has been provided and what is available on the Work and Income website does not sufficiently answer the request. The information on the website does only cover rather general and mostly widely available information that MSD communicates to medical practitioners, specialists and other health professionals, who conduct assessments on health conditions and on work ability of clients.
Through earlier Official Information Act requests to MSD we have already been informed that Regional Health Advisors, Regional Disability Advisors, also the Health and Disability Coordinators, and the Principal Health Advisor, do all regularly communicate and correspond with various medical practitioners and other health professionals working with MSD and Work and Income. This happens particularly with designated doctors. We are informed and aware that there are other forms of direct Advisor to practitioner “advice” and “expectations” being communicated to such health professionals. These forms of communicated advice, guidelines and expectations are NOT covered by the mostly more general information on the website.
Also did the requester ask: “Have particular sets of questions been sent or presented to GPs, as a format to work with, have particular criteria been communicated, beyond of what is contained in the medical certificate forms, or the ‘Guide for Designated Doctors.”
Hence the request has in that regard not been met and answered. We would expect that more information should be provided, which would not be case specific, but which is applied more widely. This kind of information is definitely not available on the website, and it would go beyond the information on the ‘Work Capacity Medical Certificate’, and in some cases also beyond of what was once available through a “Guide for Designated Doctors”. If there are reasons to withhold such further information, we should expect that MSD would state and explain this. But the information and answers given seem to ignore the actual request.
Also did the requester ask for a source to find the once used ‘Guide for Designated Doctors’, which has also not been provided, certainly not on the Work and Income website. All that is offered are links to download an application form (in PDF) for “designated doctors” and to access “READ Codes” to use by doctors. See the following link:
http://www.workandincome.govt.nz/community/health-and-disability-practitioners/designated-doctors.html#Resourcesfordesignateddoctors8
Hence that part of the request appears to also not have been answered. If there is no longer such a Guide, or if it is withheld for particular reasons, it must be expected that this is clarified. The same should be expected if that former “Guide” has been replaced by another document.
Besides of the limited information that has been provided and the above that has not been provided, we can note that sufficient data was provided to requests 9, 10, 12, 13 and also 14.
D) Interpretation of – and conclusions from – the obtained information
When looking at the greater picture, and assessing the O.I.A. responses from 26 February 2015 and the one from 24 April 2014, we have reason to presume, that MSD is reluctant to present the whole information that was requested, as this may reveal that the trials for MHES and SPES are not delivering the outcomes that MSD and WINZ had anticipated or hoped for.
The newly provided information appears to show, that the MHES is not delivering the results that were expected when this “service” was introduced around September 2013. The earlier OIA response from 24 April 2014 (question/answer 5, page 3) mentioned that 328 participants had by 27 Jan. 2014 ended their participation with a provider, while only 65 had been placed into jobs. The newly provided figures (from 26 February 2015) for those “exiting” the MHES seem to apply only for October 2014. It is hard to believe that since 27 January 2014 up to the end of October 2014 only 206 further participants in the MHES could not be referred into jobs for the stated reasons. If the MHES had been such a success, we would have heard the Minister and MSD boast with this!!!
At the end of October 2014 out of 534 fully enrolled participants 365 “exited” the service due to “end of 6 months service”, 40 did so due to “medical reasons” and yet more did so for a number of other reasons. NO figures are provided for successful employment placements. It is hard to believe that out of the total of 2,577 persons with “mental health conditions” referred to the service only 534 could not be placed into lasting jobs. Also has MSD failed to provide figures for how many participants in the Sole Parent Employment Service were actually placed into jobs, and whether they remained in employment for any significant periods of time.
We are informed that the requester is trying to chase up the above mentioned and other missing information from the latest OIA response from MSD, particularly –
a) re physical on site addresses for the various providers asked for in request 1,
b) re actual, particular “outcome expectations” (ratios) MSD have in providers (not just fees paid), asked for under request 2,
c) re the roles and qualifications MSD expects staff of external providers to provide and have, asked with request 3,
d) re the actual numbers of participants referred to the MHES and the SPES that were placed in lasting jobs, see request 4,
e) re the correct “exit” figures for participants (per month or the year) asked with request 4,
f) re the specific performance TARGETS (in numbers and criteria), not represented by “performance bonuses” or the likes, asked with request 8,
g) re the OTHER advice and expectations that WINZ place on GPs now, and which come from the Regional Health Advisors, Regional Disability Advisors, and also Principal Health Advisor Dr Bratt, who often communicate directly with medical practitioners, and which is NOT published on the MSD and WINZ websites, see request 11,
h) re a few other bits of so far not disclosed or withheld information.
As for the rest of the replies in the OIA response dated 26 Feb. 2015 the following stands out, and is of great concern:
1. MSD state on page 3, in reply to request 3, that they do NOT provide additional “health and clinical support” services and instead rely on clients using such health services they already access elsewhere; hence the service can hardly be called a “supported” “mental health employment service”;
2. MSD state also on page 3, in reply to request 3 that the MHES service providers “support” participants to “access any additional support services that they may require”, where appropriate; this though raises the question how well qualified, experienced, equipped and connected the providers are to do so, and how they may be able to do this, as they need full consent of the “client” they work with;
3. MSD state on page 5 to request 5 that “the Ministry does not record information pertaining to the wellbeing of a person following a referral to a service provider.” This should be of great concern, as that means MSD simply leaves clients’ well-being and fate fully in the hands of the outsourced service providers, who are not accountable under the OIA; one should expect that MSD would bother to “care” and expect to be informed and keep some relevant records on persons with health conditions referred to other services;
4. The figures provided in response to question or request point 9 show a massive increase in “obligation failure sanctions”, particularly since late 2013, which was when the first newly introduced rules, additional expectations and obligations brought in under the ‘Social Security (Benefit Categories and Work Focus) Amendment Act’ started to kick in! While sanctions of Supported Living Payment recipients have remained few, they have almost “exploded” for the new Jobseeker Support benefit category recipients with health conditions and disability. From September 2013 to September 2014 these sanctions have doubled! This is further evidence that the new regime being enforced is draconian;
5. MSD state on page 8 to question/request 10 that “while the Ministry is able to identify the number of benefits that have been stopped following the death of the beneficiary, the reason for death is manually recorded on the beneficiary’s record”. Therefore the Ministry is “unable” to provide the information under the OIA under section 18 (f), they claim. This does indeed sound very irresponsible, and can be perceived as a neglect of the duty of care and accountability, as cases of self harm and suicide leading to death should be a huge concern to MSD and WINZ and SHOULD be reported and recorded centrally;
6. MSD simply refer to information on their website for medical practitioner information for completing Work Capacity Medical Certificates in reply to question 11, but the answer put to them, about clear sets of questions that MSD may provide them to ask clients and patients is not being responded to (see: http://www.workandincome.govt.nz/community/health-and-disability-practitioners/work-capacity-med-cert-health-practitioners.html) ; other information obtained earlier has revealed the close cooperation between MSD’s Dr David Bratt and his “Advisors” and general practitioners, and it must be presumed that proper sets of questions and other advice have been made available to GPs to use when interviewing patients(!); also is the reference to a controversial statement by the AFOEM on the “health benefits of work” not appropriate, as these do not necessarily apply generally and can be disputed;
Note: The link under ‘6.’ above no longer works, so try these ones, please:
http://www.workandincome.govt.nz/providers/health-and-disability-practitioners/guides/
http://www.workandincome.govt.nz/providers/health-and-disability-practitioners/guides/work-capacity-med-cert-health-practitioners.html
(updated 19 Sept. 2016)
7. The clear increase of reported and recorded abusive behaviour, like threats, intimidation, assaults and the likes that MSD and WINZ staff suffered over recent years deserve attention, as there appears to have been significant increases of such until 2013. Likely due to the shooting incident at Ashburton, and threats and abuse at some other branches, having been followed by a resolute security crackdown, do the figures for 2014 appear to have reduced a little. It is evident that the increasingly draconian “reforms” that were introduced since 2010 have pushed more people towards showing inappropriate, but perhaps understandable reactions (see table in response to question 12, page 9 to 11);
8. Trespass orders appear to have been more fluctuating and showing less of a clear trend, but in some regions there seem to have been increases (tables on pages 12 to 13, in reply to request 13).
E) Final conclusions
It appears that MSD and WINZ are somewhat more prepared to and comfortable with the release of information that shows how WINZ staff members suffer from inappropriate, abusive, threatening behaviour and even physical assault, rather than with releasing information that shows how their “trials” for the MHES and SPES are going.
There is much talk about the ambitious goals and efforts being made to “support” also sick, injured and disabled into work, but data we get on clients participating in the mentioned services, and leaving them again, is sketchy and ambiguous. It seems extremely “bizarre” for MSD to provide some poorly specified sets of figures for some participants “exiting” these newly contracted services offered by outside providers, yet offer NO figures at all on actual job referrals and placements, and whether they last longer or not.
In view of that, it seems that the MHES and SPES trials are not delivering, because if they would, we would certainly hear about it. We did some online research for “Mental Health Employment Services” offered by WINZ, and very little information can be found. Hence the ball is in the court of MSD now, to present us the true figures on this, same as the other information that has NOT been provided.
Work and Income and MSD have for a few years now shown less transparency and only made limited amounts of official information available, and this makes it near impossible to properly evaluate the success or failure of new policies that were brought in since 2008, especially since 2010. As was already mentioned in another post, MSD also stopped publishing data on Medical Appeals Board hearings and expenditure with their Annual Reports in 2011 or 2012. The requester has confided to us, that a range of complaints re MSD and their O.I.A. responses has been filed with the Ombudsman.
Quest for Justice
Auckland, updated 14 April 2015
FOR EASIER READING DOWNLOAD A PDF WITH THE TEXT OF THIS PUBLICATION:
mhes-spes-msd-withholds-o-i-a-info-that-may-prove-trials-a-failure-post-nzsjb-upd-fr-14-04-15
And here is an even more up to date version of the same, containing also some ‘Addendums’ up to 4 Dec. 2017:
MHES + SPES, MSD withholds O.I.A. info that may prove trials a failure, post, NZSJB, 14.04.15, upd. 04.12.17
(Please bear in mind that links may only be “active” on this blog-post, and not in the PDF!)
ADDENDUM 1: THE GOVERNMENT CONTINUES TO WITHHOLD EVALUATION INFORMATION ON MHES AND SPES (05 OCT. 2015):
On 17 September 2015, in the NZ House of Representatives (Parliament), the Labour opposition spokeswoman on Social Development, Carmel Sepuloni, put a hard question to the Associate Minister for Social Development, asking about the government’s position on the apparently poor outcomes of so-called “trials” in the form of Mental Health Employment Services (MHES) and Sole Parent Employment Services (SPES). She appeared to have already received a response to an Official Information Act (OIA) request from the Ministry, putting into question the effectiveness and success of the new contracted out services.
The Associate Minister Jo Goodhew appeared a bit tense and annoyed, and was reluctant to provide any proper response or any useful data. Pressed for an answer, she then simply said to Carmel Sepuloni, that she would have to wait until late in the year for an “evaluation report”. That report though was supposed to have been presented already, according to earlier indications.
So we continue to be left in the dark, about how many persons that took part in these supposed “wrap around service” delivering programs were actually successfully placed into any suitable, lasting and paid employment.
What should also be of great concern, was that the Associate Minister was actually guilty of misleading the House of Representatives Parliament) when giving her answers. First though, see this video:
http://www.inthehouse.co.nz/video/39670
You hear and see how Carmel Sepuloni asked about details about the Sole Parent Employment Service and also Mental Health Employment Service, run on a trial basis for over a year now, and where NO real data has been made available about their supposed “success”. She asked for a response to the conflicting, worrying details she appears to have received by way of an OIA request.
As for parts of the answer by Jo Goodhew, Associate Minister, she was misleading the House!
First see her details here, on the glossy Parliament website:
https://www.beehive.govt.nz/minister/jo-goodhew
She claims there is no obligation for mental health suffering or sole parents to take part in the employment referral programs that MSD now use through outsourced, contracted service providers. The truth is that “officially” there is no obligation for mental health sufferers on health related benefits to join the MHES, but there is most certainly an obligation for sole parents to participate, as the following shows:
Click to access sole-parent-support-obligations-and-privacy-form.pdf
Yes, there is most clearly an OBLIGATION to take part in such measures, that assist a person that receives the Sole Parent Benefit to get employment. See 2. for part time work obligations:
“take part in any other activities that Work and Income refer me to, such as attend any job training courses, seminars, work experience or work assessments (including rehabilitation, but not medical treatment) that will improve my work readiness or help me get work”
So in denying that there is an obligation, implying that it is supposed to be all voluntary is simply untrue, and hence Jo Goodhew misled the members of Parliament, which should be a serious matter. So far nobody appears to have bothered raising this, so we must watch this space.
As for the supposed “voluntary” participation of mental health suffering persons on benefits, they will indeed also face some expectation to participate in measures that assess their work capability and that may assist in getting them “prepared” for taking on employment. This has already been covered in other posts on this blog, and such requirements are stated in the Social Security Act.
According to the Associate Minister an “evaluation” of MHES and SPES will be due later in 2015. As the government has a habit to publish bad reports late on Fridays, or just before long weekends, I presume that such an evaluation report will be presented just before Christmas, so that the media and the public will not pay much attention to it, because then they will have other (important) things on their minds.
As for the sought data on job placements, that could not be included in the post above, a complaint is now before the Office of Ombudsmen, still very slow at being progressed, as we have been advised. Clearly MSD did not provide all the information sought, and the Ombudsman will have to ask the Ministry (yet again), why they did not provide the specified information that should be readily available by now.
ADDENDUM 2: “BACK-TO-WORK PROGRAMME LABELLED A FAIL”, NZ HERALD REPORT FROM 17 SEPTEMBER 2015 (added 05 Nov. 2015):
In the meantime we have been getting the first solid media reports revealing information that the MHES (Mental Health Employment Service) and SPES (Sole Parent Employment Service) – that MSD has contracted out with various private service providers – are failing.
The ‘New Zealand Herald reported on it under the following title:
‘Back-to-work programme labelled a fail‘, and the full article can be found via this link:
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11514141
Extracts:
“A multimillion-dollar scheme to get beneficiaries with mental health conditions and sole parents back to work appears to have flopped.
Work and Income has already spent more than $7.3 million on the new services, part of wider reforms.
Up to 2000 people at a time are on the trial programmes, which offer extra services such as employment placement and in-work support.
The aim is to help beneficiaries return to and stay in work.”
“A full midpoint evaluation of the programmes, which began in September 2013 and will run until next June, has been delayed until later this year.
But an April 7 briefing to Social Development Minister Anne Tolley, released to Labour under the Official Information Act, shows that those on the programme did not stay in work for longer, or earn more.”
“”At the 12-month evaluation point in September 2014, the impact monitoring showed no detectable impact on off-benefit outcomes or earnings outcomes for the Mental Health Employment Service contracted trial compared to internal Work and Income services,” the report said.
A 3 per cent lift in off-benefit outcomes for sole parents was noted, compared with a control group, but this was not statistically significant.”
Own Comments:
So it is no wonder then, that we get no reliable or no figures at all on the actual numbers of referred persons to those services, who managed to get work and stay in work for any significant time.
ADDENDUM 3: NEW OIA RESPONSE BY MSD FROM 19 NOV. 2015 REVEALS ONLY A LITTLE MORE ON THE APPARENT FAILURE OF THE MHES AND SPES TRIALS (added 26 Nov. 2015):
Here are links to the new response to a range of various requests and questions put to MSD, again some not answered properly or not at all. Also are there two links to the OIA request letters from 08 July 2015:
The replies in MSD’s response:
MSD, OIA rqst, Dr Bratt, MHES, SPES, WAA, reports, WINZ sundry data, 08.07., reply, anon, 19.11.15
MSD, OIA rqst, Dr Bratt, H+D Panel, MHES, SPES, WAA, reports, reply, hi-lit, 19.11.15
The request letters:
MSD, O.I.A. request, to C.E. of M.S.D., base benefit break down, anon, 08.07.15
MSD, O.I.A. request, to C.E. of MSD, Bratt, H+D Panel, Reforms, anon, 08.07.15
A new post offering more info and comment on this is being prepared and will be published soon!
ADDENDUM 4: MSD’S ‘FINAL’ RESPONSE TO THE ABOVE REQUEST, RECEIVED AFTER THE INTERVENTION OF THE OMBUDSMAN, DATED 22 NOV. 2017 (added 3 Dec. 2017):
It took a complaint to the Ombudsman, made in late 2014, a very long wait, and a rather unsatisfactory kind of effort by their Office, to convince MSD to release some more information, which was dated 22 Nov. 2017, and received a few days later by the requester.
It provides only some further information in relation to requests 2, 4 and 7 (see the above letter and requests, dated 1 October 2014), but the answers and figures provided do show, that the MHES trials were after all not very successful at all.
See the redacted response by MSD via these links:
MSD, OIA rqst, MHES, WAA, other services, 01.10.14, further info release, anon, 22.11.2017
MSD, OIA rqst, MHES, SPES, WAA, other services, 01.10.14, further rel., hi-lit, anon, 22.11.17
And here is the original request from 1 Oct. 2014 – again, for reference purpose (anonymised):
MSD, OIA rqst, to C.E., WAAs, MHES referrals, suicide stats, etc., anon, 01.10.2014
Time permitting, a proper separate post, also covering the somewhat unsatisfactory responses by the Office of Ombudsmen, will follow some time soon.
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:
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 Advisor” Dr 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):
‘Pressure / No Pressure – Strategies for Pushy Patients’ (see slide 27!):
http://www.google.co.nz/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=0CDMQFjAE&url=http%3A%2F%2Fwww.rgpn.org.nz%2FNetwork%2Fmedia%2Fdocuments%2FConference2011%2FD-Bratt.ppt&ei=TgQIVdLLH4qP8QWxnYBQ&usg=AFQjCNFEdYN_dDW9BAZvZo_cQpC2rFyelg
Here are links to PDF files with evidence that MSD have trained Designated Doctors and their “Advisors”, much of this being done by Dr David Bratt as PHA himself:
MSD, Des. Dr Training, Comm. Requiremts, J. Russell, M. Mortensen, memo, hi-lit, 23.01.2008
MSD, Design. Dr Training Workshop, and H+D Coordntr, info sheet, Rankin, Bratt, 12.08.2008
The already mentioned Regional Health and Disability Advisors do “endorse” practitioners who may be prepared to work as “Designated Doctors” and/or serve as MAB Panel members, but it is Dr Bratt, who has usually the last say as to who is accepted as a “designated doctor”. His colleague, Principal Disability Advisor Ann Hawker, is largely very silent, and appears to stay in the background, on all these matters.
As the MAB hearing panel members are often also “Designated Doctors”, and as these doctors do in many hearings represent more than one member of the 3-member panel, it becomes evident, that the so much proclaimed “independence” may get a whole new meaning, once these facts are also considered. It is also the “Health and Disability Coordinator” for the relevant region, who has the last say about who ends up in the pool of MAB hearing panel members. The “Medical Appeals Coordinator” is then simply picking panel members from that maintained pool, and as mentioned in the “Info Pack”, some members can be called upon again and again. So members that may turn out to deliver the outcomes that WINZ and MSD prefer, can in that case simply be picked to do more hearings, potentially serving the very interests of MSD.
See the following links to position descriptions for ‘Regional Health Advisor’, ‘Regional Disability Advisor’, ‘Health and Disability Coordinator’ and ‘Principal Health Advisor’, containing relevant information showing their wider responsibilities:
MSD, O.I.A. Request, Reg. Health Advisor, position description, highlighted points, Feb., 2007
MSD, O.I.A. Request, Regional Disability Advisor, position description, Feb. 2007
MSD, O.I.A. Request, Health + Disab.Coordinator, pos. descrptn, highlighted points, Feb. 2007
MSD, O.I.A. Request, Princ. Health Advisor, position description, highlighted points, Jan. 2007
See this OIA response from MSD’s then Deputy Chief Executive Debbie Power dated 12 July 2013, revealing the names of the mostly long serving RHAs and RDAs, and what actual qualifications they have. At the end there is also a table showing that MAB appeals from 01 July 2012 to 30 April 2013 led to 74 percent of WINZ decisions being upheld, and only 26 percent being overturned:
MSD, O.I.A. Request, DDs, MABs, training, ltr fr. D. Power, C.E., w. MAB table, anon., 12.07.13
See the questions put to MSD, by way of an OIA request letter from 11 June 2013:
M.S.D., O.I.A., request, anonymous, re DDrs, MABs, PHA, PDA, training, draft, 11.06.13
See also a link to a PDF file with the application form for “Designated Doctors”, showing on the last page the boxes to tick and spaces to fill in, where RHAs and RDAs “endorse” them, and where the Principal Health Advisor or Principal Disability Advisor can then “approve” them (under “Office use only”):
Click to access designated-doctor-application.pdf
Offering further insight into the workings of “Designated Doctors”, the mentioned “Advisors” and how MAB panels are appointed, read this interesting OIA response from former Chief Executive of MSD, Peter Huges, from March 2011:
MSD, O.I.A. request, Design. Drs, MAB appeals, RHAs, RDAs, C.E.’s response, March 2011, re anonymous
Read especially his answers to questions 14, 15, 16, 17 and 18!!!
The special roles of Principal Health Advisor, Principal Disability Advisor, Regional Health Advisor, Regional Disability Advisor and Health and Disability Coordinator were created and appointed by MSD in 2007 under the last Labour led government. They are roles fulfilling functions that the Chief Executive can delegate according to provisions in the State Sector Act 1988. I refer you to former Chief Executive Peter Hughes’ response to request point 12 on page 3 of his letter from March 2011. The “Advisors” are therefore not “ordinary” staff, but still work for MSD.
At the top of page 5 of that OIA response Peter Hughes also makes clear: “I can advise that it is normal practice for more than one Designated Doctor to sit on the Medical Appeal Board.”
4. Qualifications of MAB hearing members
The MAB “Members Information Pack” lists the kinds of qualifications that panel members are expected to have. A list of designated doctors obtained in August 2012 shows that the vast majority of them are simply general practitioners (GPs). It must be presumed that most members on MABs are also general practitioners.
See this link to a PDF with relevant information:
MSD, Designated Doctor List, complete, as in August 2012
This is much in line with the figures previously supplied by Peter Hughes in the OIA response received in March 2011 (see again his answer to question 14, on page 4 in the document referred to above). Under the answer to question 18 in that same OIA response Peter Hughes also revealed that of the 10 medical practitioners on the MAB in Auckland 6 were “Designated Doctors”.
See again this link to a PDF document with that info:
MSD, O.I.A. request, Design. Drs, MAB appeals, RHAs, RDAs, C.E.’s response, March 2011, re anonymous
Of the other qualifications listed in section 10B of the Act, and in the “Info Pack”, MSD will pick the Members possessing such, who were also consulted with by RHAs, RDAs and HDCs. It can be reasonably presumed, which is confirmed by anecdotal evidence, that only a small number of “Rehabilitation Professionals” will sit on a MAB panel, like for instance specialist nurses, occupational therapists, physiotherapists or psychologists. As for the latter, there has in Peter Hughes’ letter and other information been little or no evidence of psychologists being part of such hearing panels.
There is no information we have on persons with appropriate expertise in vocational training or vocational support for persons with sickness, injury or disability, sitting on MABs, but given recent developments as a result of the major reforms in 2013, there may well be some increased involvement of such professionals in hearing some cases now.
5. MAB Members are guided by the AFOEM’s questionable position statements on the “health benefits of work” (influenced by Mansel Aylward)
The ‘Australasian Faculty of Occupational and Environmental Medicine’ (AFOEM) has since 2010 progressively adopted the new approaches propagated by Professor Aylward and some like-minded “experts” based in the UK, primarily at the ‘Centre for Psychosocial and Disability Research’ (formerly “sponsored” by UNUM Provident) in Cardiff, Wales. The AFOEM has formulated a number of documents on the supposed “health benefits of work”. This was facilitated under the Presidency of former Atos Healthcare employee Dr David Beaumont. As the ‘Royal Australasian College of Physicians’ (RACP) and the AFOEM set the agenda or direction for what new healthcare approaches are promoted and followed in medical science and treatment in New Zealand and Australia, and as even the ‘Royal New Zealand College of General Practitioners’ (RNZCGP) and other organisations have signed up to support the same “position statements”, it must sadly be concluded, that the whole medical profession in both countries is now loyally applying Aylward’s recommended approaches.
The MSD has enthusiastically welcomed this and included a reference to the AFOEM’s position statement on the “health benefits of work” on their ‘Work Capacity Medical Certificate’ that doctors are now expected to complete for WINZ clients. All this appears to be part of a well planned strategy, to gradually reset medical criteria and to reformulate the meaning of sickness and the capacity for work, all done with the sole major aim, to reduce welfare numbers and costs!
See these links to the AFOEM (as part of the RACP) website with info on their “positions statements” and Mansel Aylward’s crucial involvement:
http://www.racp.edu.au/docs/default-source/default-document-library/australian-and-new-zealand-consensus-statement-on-the-health-benefits-of-work.pdf?sfvrsn=2
http://www.racp.edu.au/docs/default-source/default-document-library/read-realising-the-health-benefits-of-work-position-statement-october-2011-%28pdf-654kb%29.pdf?sfvrsn=0
https://www.racp.edu.au/
https://www.racp.edu.au/advocacy/division-faculty-and-chapter-priorities/faculty-of-occupational-environmental-medicine
https://www.racp.edu.au/advocacy/division-faculty-and-chapter-priorities/faculty-of-rehabilitation-medicine
UPDATE from 20 Sept. 2016: The RACP / AFOEM website has recently been restructured and redesigned, and a number of former documents, and even videos, on their ‘Position Statement’ on the supposed ‘Health Benefits of Work’, have since disappeared. It seems that this is at least partly due to concerns about initially made bold claims, which have been found to be incorrect and lacking evidence. This also coincided with the departure of former AFOEM President Dr David Beaumont (a former ATOS Origin consultant from the UK), who was instrumental in getting the controversial UK Prof. Aylward involved in launching their Statement. Readers should also take note of a ‘Viewpoint’ article by researcher Gordon Purdie, in the New Zealand Medical Journal from 20 Nov. 2015, under the following link:
https://www.nzma.org.nz/journal/read-the-journal/all-issues/2010-2019/2015/vol-128-no-1425-20-november-2015/6729
Click to access Purdie-1874FINAL1425.pdf
C) THE MEDICAL APPEAL PROCESS AND APPROACH IN DETAIL
1. The MAB process has changed with the introduction of a new welfare regime
The process followed for Medical Appeal Board hearings has changed a fair bit since the reforms changed much of the Social Security Act in 2013. The new process appears to be adjusted to be more in line with the general, now more draconian approach in assessing sick, injured and disabled for their capacity to work. The ‘Medical Appeals Board – Board Members Information Pack’, released in July 2013, reveals what changes have been made. There was until a couple of years ago another guide in use, called the ‘Medical Appeals Board – A resource for Board Members’. A copy obtained from a trusted source in 2012 shows a somewhat different process being followed then, which was less complex, not as detailed, less clear, and probably applied in a more flexible manner.
But like already then, the process is now usually started by the affected WINZ benefit applicant or recipient making a written request for a review, or actually right away an application for an appeal, against a decision made by WINZ based on medical grounds or on a client’s assessed work ability, usually by one of their case managers.
As the newly amended Social Security Act now contains many new OBLIGATIONS for beneficiaries, the current process does not only review decisions made on simple health grounds, but also those where the imposition of certain obligations, like for instance work preparation, or work test obligations, were part of the decision. There are a few fundamental changes that were made to the former process that will be explained in the following.
Here are first of all 2 PDF files with copies of the ‘Medical Appeals Board Board Members Information Pact’ (released July 2013) and of the older ‘Medical Appeals Board – A resource for Board Members’ (as it was in 2012), obtained from trusted, confidential sources:
Medical Appeals Board – Board Members information pack for release, July 2013
MSD, Medical Appeal Board, Resource for Bd Members, manual, undated, rec’d Jan. 2012
Of some interest may also be an older ‘Guide for Designated Doctors‘, that was available for download in 2011, but seems to be out of date now:
MSD, Work + Income, guide-for-designated-doctors, current, downloaded, 18.04.2011
2. The new MAB process is outlined in the ‘MAB Members Information Pack’
The jurisdiction of the MAB is explained on page 15 of the ‘MAB Members Information Pack’, and it does reflect the provisions in the Social Security Act. At the top of page 17 the “Info Pack” also states that an appeal can only be heard once. That means an appeal can only be heard once for the particular decision it relates to. An appeal must usually be made within three months, but a MAB can in some cases allow exceptions to that rule, if an appealing client can give good reasons for this to be granted. This is in line with previous provisions.
As for the pre hearing process, a client can appeal in writing to the MAB if she/he disagrees with a decision made by WINZ (MSD) on eligibility or obligations based on medical grounds, or on grounds relating to capacity for work. The decision and appeal must fall under the provisions of section10B of the Act. Before a hearing is set, the client will be asked to meet with the case manager who made the decision, or if the client insists on seeing another staff member, meet with that person, to discuss the appeal and certain other relevant details.
If the WINZ case manager and client cannot resolve matters leading to a review of the decision, the matter will then be forwarded to the “Appeals Coordinator”, who will conduct a formal internal review of the matter. Any new information the client presents will be considered during this review. Prior to changes in 2013 the Coordinator only performed an “administrative check” of the challenged original decision, not a proper, formal internal review of it. So this pre hearing review must be welcomed as a positive change. If that (further) internal review finds that the initial decision was in part or fully “correct”, then the Coordinator will contact Board Members to set up a MAB hearing. A Process Flowchart on page 10 of the “Info Pack” shows the steps that WINZ, the Coordinator and then the MAB follow. The client and appointed MAB members will be contacted, and all will be sent a prepared ‘Report for the Medical Appeals Board’ (see also page 19 of the “Info Pack”). This Report summarises and presents the case to the appellant and MAB Members in a slightly different, apparently more “standardised” way than it used to be done.
3. The Report for the MAB
The “Report” is meant to be kept in a “standard format”, and according to the guide it “will accurately and concisely summarise what the appeal is about”. Appendix 19 shows a draft ‘Report’ format, which appears to limit what a client may be able to have as any input here. It is clear that this ‘Report’ is actually prepared by the MSD employed Coordinator, possibly in cooperation with a WINZ case manager. Therefore it will inevitably rather represent the case from MSD’s point of view, and will be kept very short and succinct, so as to not allow much discussion or interpretation of stated details.
Under ‘Section 2 – Summary of facts’, which is supposed to represent crucial facts, at least relevant information like medical certificates and reports, from host and designated doctors, specialists, work ability assessors and so will be attached, which must be expected. But then there is a mention of “list any advice sought and received from other parties and any relevant information that supports the decision made”. And there we have it, the ‘Regional Health or Regional Disability Advisor’ are mentioned, also the “Principal Advisors”! As already mentioned above, these “Advisors” can hardly be seen as independent ones, given the kind of training, mentoring and guidance they get, all based on the “new approaches” recommended by Mansel Aylward and like minded UK “experts”. And of course, they are employed, trained and paid by MSD!
Under ‘Section 3 – Case for the client’, it appears the client’s case is summarised. This can only be done with client input, and it depends on how much of that will be encouraged and allowed, by the case manager who advises the client on appeals, whether this can be considered as “fair” or not so. It would appear that this information is primarily, possibly almost exclusively, based on the appeal application made by the client. Without good, independent advice (certainly not from a WINZ case manager) a client is likely to be poorly advised to prepare for an appeal. As it is limited what a client can present to be included in this kind of ‘Report’, it is of utmost importance, that an application for an appeal is as precise, detailed and comprehensive as possible, and is also accompanied by relevant, important documentation that is essential to be considered. It appears absolutely essential for a client to start preparing any submissions right from the start, and present them in writing, after consultation with a good, experienced, competent advocate, or better a legal advisor. All relevant medical and other important information must be included and documented.
Under ‘Section 4 – Case for the Ministry of Social Development’, the Coordinator is meant to present evidence and other relevant information the Ministry deems essential. Here it becomes totally clear, that the Ministry (WINZ) have a clear advantage in the process, as they will have all the resources to their avail, to present strong legal arguments, to refer to legislation, to present relevant documentation they have, and to point out policy and procedural matters that they wish to be considered. We must bear in mind also, that the reforms based on completely new policy and new approaches have led to significant changes to the Social Security Act, which now imposes more expectations, obligations and also sanctions on clients claiming benefits. The reforms have brought in a totally new approach, where “work ability” is considered under different kinds of criteria, similar to the approach that has been used in the UK. The involvement of the mentioned “Advisors” providing their “recommendations” comes into play, and even the medical profession now appears to be compromised, as it is expected to work within the new legal and policy framework, and to rather look at what a person “can do” than what they “cannot do”.
Traditional, objective medical scientific diagnosis, assessment and treatment is no longer accepted without a challenge, and hence the very MAB Members, same as the “Advisors” MSD employ, will all be bound to adhere to the above, and review appeals accordingly.
And as if the Ministry has with this not already got enough “clout” to use in the process, ‘Section 5 – Conclusion’ does offer it another chance to state its expectations, to ensure it has the last word in appeal hearings. One should expect a NEUTRAL ‘Conclusion’, given the fact that the MAB is supposed to be appointed by a “neutral” Coordinator, acting without taking sides, despite of being a MSD staff member her-/himself, but that is not what we get.
No, it says the following:
“In this section:
– state that the Ministry considers the decision under appeal to have been made correctly
– provide a brief and concise statement which outlines the reason for the decision.”
Therefore this ‘Report’ already presents a start to the process that is at least slightly favouring the MSD before the appellant, given the type, quality and weight of information allowed to be included, and the fact that it is a report prepared by a person working as an official employee of MSD. Without any legal advice any appellant will have a significant disadvantage from the outset of this process.
4. Further information presented for the appeal
On the bottom of page 19 of the “Info Pack” it mentions that further information and submissions can be presented by the client and their representative, which I think is an absolute must, in order to be heard and given due consideration by the MAB. Indeed both the appellant and the Ministry can produce “new information” during the hearing process, as it states at the top of page 20. Such information can be presented before or during the hearing, and in the latter case a hearing may need to be adjourned. The client must ensure that any submission is also presented to the Ministry, which can and will usually happen via the Coordinator. Sufficient time must be given to the other party to consider the information.
What some MAB Members have in the past not sufficiently understood is the fact, that a MAB must NOT examine the client / appellant! This has happened on some occasions, but by doing so, the MAB panel would automatically disqualify themselves, and the hearing would be legally invalid, and an appeal would need to be heard anew. A further medical examination of the appellant can only be done by another examiner who is not part of the hearing process, and a hearing can be adjourned pending the result of such examination. If the client does not agree to a further medical examination, then a hearing may be conducted on paper and on evidence already before the MAB. New medical and other relevant information can still be presented after a hearing, and before a decision is made and sent to the appellant. Then it must again be considered by the other party and the panel. If new information is available and presented after the MAB decision, it cannot be considered and will not change the decision, and can instead only be considered by the responsible WINZ branch through reviewing a situation according to section 81 of the Act. That may though also involve a further re-examination by a “Designated Doctor” or so. A new decision made after that is then open for another appeal, if the client sees a need for that (see page 21).
5. The newly introduced Ministry’s “presenter” upsets the power balance in MAB hearings
Probably the major new change to the MAB process is the now common involvement of a “presenter” before a hearing panel, to present the case of the Ministry. This was not part of appeals heard before the changes, as far as we can establish, and creates something of a further imbalance that does clearly favour the Ministry of Social Development.
Under “Personal representations” on page 22 of the “Info Pack” it says: “The client may attend in person at the appeal hearing. If the client chooses to attend then the Ministry presenter should also attend. If the client chooses not to attend the hearing then the Ministry presenter does not attend either.”
Already at the bottom of page 5 of the “MAB Members Information Pack” do we read under the heading “Natural Justice”:
“Although it is important to treat both the Ministry and the client equally, Board members should recognise that the Ministry has a natural advantage. The Ministry presenter will have access to the relevant law, policy and legal advice; the client may not have this.”
The following comments that the Board should minimise this imbalance by “ensuring the client has a full opportunity to be heard”, are unconvincing, as it will solve little.
Although there is NO provision in the Social Security Act for the attendance of such a presenter, and although this was apparently never practice, the Ministry appears to have thought, that this is what “natural justice” allows them to do, as it allows them “to be heard”.
But given the fact, that the whole process does already give the Ministry a significant advantage, due to its access to expert legal and other advice that can already be included in the ‘Report for the Medical Appeals Board’, due to its generous financial resources (paid by the taxpayers), and its inside knowledge of procedures, processes and policy, this development must be treated with greatest concern and deserves strongest criticism.
The Ministry does already appoint the MAB Members, provides them with their training and guidance, pays the MAB, insists on the MAB to adhere to new medical and work ability assessment criteria and approaches, and sets the policy framework they must follow when reviewing appeals. The Ministry’s Advisors and Coordinators play an additional role in communicating certain expectations, in finding, selecting, endorsing and approving MAB members, and the whole process is thus already stacked against the appellant, usually equipped with very few resources, with limited knowledge and often no legal advice.
Also do the mentioned RHAs, and RDAs, often upon consultation with one of the Principal Advisors at Head Office, make their own recommendations on clients’ health and ability to work to the decision-making case managers. They will therefore – as special consultants employed by MSD – contribute to disputed decisions, while they are at least indirectly also involved in the appointment of MAB Members (often “Designated Doctors”).
The presenter will have ready access to (internally available) legal advice, which the appellant is likely to not have. The presenter is not medically qualified, so will have little competence in commenting on relevant medical information. Such information will already be available, as it will already have been provided to WINZ and the panel by a client’s own doctor, perhaps by a “Designated Doctor”, by another specialist or a Work Ability Assessor. The presenter may simply justify her/his decision, while the layperson WINZ client will have to argue her/his case without similar professional insight. Apart from simply stating or confirming facts that should already have been presented to the MAB with the ‘Report’, the presenter is likely to only contribute by arguing legally to justify the decision she/he made.
In the past the MAB was almost purely focused on establishing the true, relevant health conditions or disability, and how this would impact on a person’s ability to work. That would then determine whether an appellant was entitled to certain benefits granted on health grounds, medical conditions and disability. There was only marginal consideration of legal provisions and complexities. That is why the MAB consisted only of medical and rehabilitation professionals. Now the usually layperson client, struggling already with poor health and with disability, is confronted with hearings that do more and more resemble court or tribunal hearings, where legal terminology may play a much greater role, and where she/he will not only be facing questions by MAB panel members, but also face arguments presented by the “Ministry presenter”, who is an expert insider of MSD’s system.
This is hardly a positive, constructive contribution to a fair and reasonable hearing by such a MAB panel. If a presenter is allowed to be heard, then the whole MAB process should be changed from being more of a “medical review” process, to a proper judicial type tribunal, where a panel would also include legal experts, experienced with hearing proper legal cases. Medical and rehabilitation professionals will despite of some training hardly have the needed legal knowledge and experience to conduct proper judicial hearings where questions of law will be discussed. A separate Tribunal should be established, also allowing further appeals to the courts system, and it would certainly need to be appointed by a special board that is totally independent from the MSD!
6. Legal representation for the client results in legal representation by the already advantaged Ministry
To complicate things further it says on page 22 in the “Info Pack” under “Resources available to the MAB to help them make its decision”: “If the Board is unsure of a legal point, such as interpreting case law or legislation, then it should ask for legal submissions on that point from the client and the Ministry presenter.”
And then the ‘MAB Members Information Pack’ also states: “If the client does not have legal representation, the Ministry can provide a list of free legal advice providers such as Community Law Centres or Citizen’s Advice Bureaux.”
This is really an audacity for the Ministry and any appointed MAB to deal with raised legal issues in this way. Community Law Centres have due to cuts in government funding been forced to close or reduce their services in some areas, and they don’t usually have the resources or even permission to provide professional legal advice for judicial hearings, which would include MAB hearings as well. They only give general legal advice to citizens, that is limited in scope and depth, and it can seldom be used to form proper, good legal opinions on specific cases. Also are Citizen Advice Bureaus (CABs) only offering rather general legal information, and they usually have little or NO expertise with such MAB hearings. The legal advisors they employ for giving low level advice to citizens can hardly be very useful for specific cases being heard by a judicial kind of body. And to our knowledge NO CAB legal advisor would serve as a representative for a client before any court, tribunal or a MAB.
To make things worse, the “Info Pack” informs on page 23 that clients or appellants bringing a case before a MAB may bring their own representatives or support persons to a hearing. A client may also (formally in writing) appoint an agent, who may be a friend, advocate or legal representative. That sounds good for a start, but if a client comes with a “solicitor” then the Ministry must be informed, so it can then consider whether it wishes to bring their own “solicitor” to the hearing.
It is already difficult for a person dependent on a benefit to cover the day to day living costs, so it is hard to imagine, how a client would be able to afford a legal representative such as a solicitor. As MAB hearings would be considered as being “civil” legal matters, a client would most likely have to apply for legal aid, which is then only granted if a lawyer or solicitor is found, who can also present a case as being likely to succeed. Without that no aid may be paid. Also are there few legal representatives that are experts in social security legislation. It is close to striking a lotto win, to find a lawyer working on pro bono basis.
In short, a client would have a dim chance to get such representation, and if she/he does, then they face the Ministry presenter bringing their own legal representative. And further to this the question arises, how are ordinary doctors and rehab professionals going to cope with legal experts presenting their cases? The MAB would be overwhelmed with legalistic arguments from both sides, and struggle to come to a competent assessment of their own.
This shows how completely unfair the process is, despite of all attempts to stress the importance of “natural justice”, and to assure participants that justice would be done through such a hearing. The “presenter” will in most cases be the very case manager who made the decision that is challenged, and have substantially more information and knowledge about the case, the process, legal provisions and policy than any client may have. And should a client then bring their own solicitor, they get “trumped” by one paid for by the taxpayer, from the pool of experts working for Crown Law, who represent MSD.
The few Advocates that are still active supporting people on benefits are often in such high demand; they will in many cases also not be available to represent a client. Again government funding cuts and caps, and lack of alternative funding, have forced many out of action, and few are available to assist free of charge as volunteers. Apart from that, few if any advocates would have the legal knowledge and expertise to cope with a professional legal representative hired by Crown Law, who is acting for the Ministry.
The process as it is now has never been stacked more in favour of the Ministry as before.
D) MEDICAL APPEAL PROCESS – SOME SPECIAL ASPECTS TO CONSIDER
1. Pre-hearing procedures, a client’s objections, and requests for recordings
From page 24 in the “Info Pack” the whole MAB hearing process is explained in a bit more detail, covering also the more practical steps that must be taken by the MAB Members.
Under “Pre-hearing procedures” and “Objections” the “Info Pack” states that a client can object to certain persons being Member on a panel, but in this case reference is primarily made to questions that may arise around issues under “natural justice”, where appointed members should be disqualified for reasons already stated on page 14.
There is no mention of the fact, that the composition of such a MAB may not match the health conditions an appellant may suffer from, or the disability that affects an ability to work. Where a person may suffer from psychiatric or psychological conditions, and there is no psychiatrist or psychologist on the MAB, a client should have every reason to challenge the “Coordinator” and MSD, and demand that a health or rehabilitation professional with the appropriate qualifications, expertise and competence sits on the Board. Otherwise there is too great a risk that she/he may not be given fair and reasonable consideration.
The other matters covered are common sense and should be expected practical steps to arrange before a hearing, but special attention must be given to the topic “Requests for taping a hearing”. The “Info Pack” states that a client may ask that the hearing be tape recorded. It also states that the MAB can set its own hearing procedure and that this is an “issue” it must consider itself.
If the MAB decides that a recording of the hearing should be allowed, then the “Info Pack” strangely advises that it may (only) be recorded by using the National Fraud Investigation Unit (a Unit within MSD) equipment that would make three tapes. One would be for the client, one for the MAB and one for the Ministry. There is talk about this being arranged before a hearing, which would then enable the “Coordinator” to arrange this to be in the room for the Board to then decide upon agreeing to recordings or not. But the MAB can refuse recordings, as long as it provides reasons and explains this to the client.
A client who is for instance a very isolated, sick or disabled person, who has no friends, relatives or not even an advocate she/he may be able to “network” with, may only be able to obtain reliable evidence of how a hearing progresses by recording it on audio or video equipment. If this is denied, the client would be seriously disadvantaged, and would have nothing to fall back on, should the hearing have an outcome she/he finds unacceptable. Such a client would under the circumstances also hardly have any resources and ability to apply for a judicial review at the High Court, which would be the only way to challenge a MAB decision, given there is no further appeal right. Hence a Board could shut down any potential challenges to its decision by simply denying a recording, even if this may breach natural justice.
On the other hand, relying only on equipment provided by one party, like in the case of the ‘National Fraud Investigation Unit’, would also be unfair and unreasonable. If the one already significantly advantaged party MSD is allowed to have its equipment used, and the other not, then this creates yet another imbalance that is unacceptable. Also should equipment be used that comes from a truly independent, uninvolved source and NOT from a source that is party to the proceedings.
And in any case, a client MUST be allowed to make their own recordings with her/his own equipment also, should a recording be allowed using MSD’s equipment. This present provision and proposed arrangement is certainly not satisfactory and unacceptable. It again potentially disadvantages the appellant and client.
2. The Hearing – procedure and further aspects of concern
It is common practice that a hearing panel can to some degree set its own “process”, as long as it is not in conflict with the statute or other law governing it, and is not in conflict with natural justice. Of course the hearing must be fair and reasonable, and the process must be explained to the participants.
As already mentioned, the “Ministry presenter” does represent a new player in the process, who is in effect creating a further significant imbalance. When the client attends, the “presenter” will also attend, as we already learned. On page 27 of the “Info Pack” it states that the “presenter” is usually the WINZ case manager responsible for the decision. If the original decision maker is unavailable to attend the hearing, another “appropriate member” will attend on the Ministry’s behalf. It says: “This may include another case manager or a service centre manager.” So the Ministry may actually even send a senior staff member such as a service centre manager to attend the hearing, which does tilt the whole process yet further towards an advantage for the Ministry.
Under “Presentations” (page 27) we read that the Ministry often presents its case first to the MAB. There it reads: “This may be because the Ministry has compiled the Report of the Medical Appeals Board.” What actually appears to be meant is that the Ministry (with the “Co-ordinator”) does compile the ‘Report for the Medical Appeals Board’. That means the Ministry also seems to often be given a head start in the hearing. This naturally leaves the client in a somewhat defensive position.
Appellants choosing not to appear before a hearing should be mindful of the fact that their appeal will in that case only be heard on paper. That means, it would be even more important to present proper, good and convincing submissions in writing, should this happen. The panel will only be able to consider evidence put before them, and if that consists only of the ‘Report’ by the “Coordinator”, then the client runs a high risk of important information not being considered, and the hearing leading to an unfavourable, potentially unfair decision.
Important to note from the “Info Pack” is the important guidance provided on “Evidence”, especially in regards to “Standard of Proof” and “Weight of Evidence”. The MAB will decide on the “balance of probabilities”, which has a lower threshold as a standard of proof. It will depend on the capabilities, experience and integrity of MAB members, how well they will apply the stated principles on the use of evidence. The best of intentions may not always suffice to meet the high standards for judicial types of hearings, and to some degree every person will tend to be subjective.
Guidelines set for “Adjournments” and for how to deal with “Disruptions” appear to be set fairly and are in line with usual standards.
On page 32 of the “Info Pack” for MAB Members we can read what guidelines they have to follow when making their “Decisions”. Apart from another section explaining the importance and meaning of “Administrative Law and Natural Justice” it is perhaps very important to note the comments at the top of page 32, which make abundantly clear, that the MAB is instructed to strictly follow applicable LAW. It states:
“It is essential that the Board’s decision reflects the relevant law, and is reached in a fair way. This means that the Board should:
● check to ensure that the applicable legislation from the time of the original decision is being applied
● identify and understand the requirements of the legislation
● consider all the options available to the client
● fully explain the legal constraints and requirements to the client and ask the client to comment on how he or she meets each specific requirement
● decide whether the client meets which, if any, of the specific legislative provisions the MAB are dealing with
● consider seeking legal submissions if unsure of the extent of the application of the ruling to the specific appeal
● act within the law.”
As the Social Security Act has now been substantially amended to enable MSD and WINZ to apply new, in part draconian measures, in the form of numerous new work preparation and work test expectations and obligations, this means, that the MAB will be expected to make decisions that are in line with these! Even where principles of “natural justice” will be followed, there are likely to be many cases, where the client will feel that the decision made is actually harsh, unfair and unreasonable, given the legal constraints that exist. This is of course intended, and hence MAB hearings will in a fair number of cases offer little in the way of legal remedies for the appellant. This will be aggravated by circumstances where the clients lack legal and administrative understandings, are poorly prepared, have failed to document everything they need to present for consideration, and where they have no advocacy or legal representation.
The MAB Members must apply the law as it stands, and base their decisions on the legislation and on assessed and presented medical or work capacity criteria. As both have now been redrawn and reformulated, given the social security reforms that came into force in mid July 2013, and given the adoption of “new approaches” for assessing “work capacity”, propagated by such “experts” as Mansel Aylward and some of his colleagues, the MAB Members will feel obligated to make decisions giving substantial consideration to all this.
On page 33 of the “Info Pack” under “Available decisions” it is correctly mentioned that the MAB may uphold, partly uphold or overturn the decision by the Ministry. Only two out of the three MAB Members need to agree on a decision for it to be FINAL!
Appendix 21 to the “Info Pack” shows a draft form of the then completed “Report of the Medical Appeals Board”. It does now look more like a proper, formal legal document, meeting official standards, which was (mostly) not the case with such ‘Reports’ prior to 2013.
3. ‘Post-hearing Procedures’ – how the decision must be documented and presented
On page 34 in the “MAB Members Information Pack” we read how the Board members are expected to document and explain their decision. It is made clear that they can and should represent the case and arguments of both parties, of the client and the Ministry. The reasons for the decision must be explained. The Members are expected to make references to relevant legislation and policy, and refer to quotes or provisions, should they justify the decision on relevant law.
The report, generally prepared by the chairperson, must state if not all members agreed, and it must be checked off with each panel member. Only the chairperson needs to sign it. The final report of the decision is sent to the “Coordinator”, who will send a copy to the client. If the Board considers it necessary to send a copy of the report to the client’s practitioner, it must seek the written consent of the client to do so. If the client refuses, then the Board can only recommend that she/he share it with the regular practitioner.
4. The ‘Chairperson’s Guide’ – leaving it up to the MAB “to run the hearing in any way”
After presenting about 35 pages of the ‘Medical Appeals Board – Board Members Information Pack’ with stated guidelines to follow, we then read with great astonishment on page 36:
“Please note that this guide is based on a process where the Ministry will present their case first. This does not restrict the way in which a Board may choose to run a hearing in any way.”
So the document is apparently nothing more than a “suggested” guide to follow, and not strictly binding! This leaves a lot of discretion to a MAB and especially the chosen chairperson, to organise and conduct such an important hearing. As non legal professionals make up the MAB, this leaves the whole process up to being interpreted and followed in ways that may not be appropriate, despite of the repeated comments and references made about legislation and “natural justice”.
At least a range of bullet points with basic facts and principles to follow is offered after that, even if it may just be a final, brief summary of the whole contents. One bullet point does then suggest again, that “the Ministry will present their case first and then the client will have an opportunity to explain his or her reasons for the appeal”.
That really says enough, for the general direction and approach that is recommended!
E) WITHHELD MAB STATISTICS AND EXPENDITURE DATA
At least some statistical information used to be published on MAB hearings, the number of the appeals heard or reviews conducted, and the total costs they incurred for a financial year. It used to be included in Appendices for fees and expenses paid to members of statutory and other bodies serviced by the Ministry. These details used to be published with ‘Annual Reports’ that MSD used to publish until 2009/10. Since then the reporting on MABs has stopped! Annual Reports now rather focus on balance sheet type accounting data, presented by Audit New Zealand and the Ministry. In the last Annual Report that contained information on MAB hearings, there was a cost blow-out, which was “explained” with an increase of applications for the Child Disability Allowance, of which more were also declined, then leading to more appeals. This was supposed to have led to the increase in total appeals, but there appears to have been an increase of medical appeals in other areas also.
‘NZ Doctor’ magazine online wrote about this on 24 April 2013:
‘Medical Appeal Board costs treble then drop back’, by Lucy Ratcliffe:
http://www.nzdoctor.co.nz/in-print/2013/april-2013/24-april-2013/medical-appeal-board-costs-treble-then-drop-back.aspx
Search the Web (under the given title) per ‘Google’, ‘Bing’ or so, or see this other link to a PDF copy of that, in case the link above does not work::
NZ Doctor, MAB costs treble then drop back, article, L. Ratcliffe, 24.04.2013
Here are links to PDF copies of the earlier Annual Reports that still show the data:
https://www.msd.govt.nz/about-msd-and-our-work/publications-resources/corporate/annual-report/
Individual ones (still available on 20.09.16):
Click to access annual-report-2009-2010.pdf
(see page 120)
Click to access annual-report-2008-2009.pdf
(see pages 121-122)
Click to access msd-annual-report-2007-08.pdf
(see page 132)
Click to access annual-report-2006-2007-part-1.pdf
Click to access annual-report-2006-2007-financials.pdf
Click to access annual-report-2006-2007-appendices.pdf
(see page 129)
Click to access annual-report-2005-2006.pdf
(see page 137)
Click to access annual-report-2005-2006-1.pdf
Click to access annual-report-2005-2006-2.pdf
(see page 137)
MSD, annual-report-2004-2005, MAB costs and cases, p. 172-173, d-load, 01.09.2012
(Most of these should be publicly available via the internet).
And the following link shows that the report 2010-11 does no longer include MAB data:
Click to access annual-report-2010-11.pdf
Click to access annual-report-2010-2011-erratum.pdf
So it appears that the Ministry has since 2011 intentionally withheld information on MAB hearings and their costs, which should be of major concern, as the reasons given, e.g. a change in financial reporting methods across the public service sector, appear a little unconvincing, to put it mildly.
In view of the above, it was perhaps a bit surprising, to get at least some one off information on MAB hearing numbers and outcomes by way of an OIA response from Deputy Chief Executive Debbie Power on 12 July 2013:
MSD, O.I.A. Request, DDs, MABs, training, ltr fr. D. Power, C.E., w. MAB table, anon., 12.07.13
With the minimal “transparency” we get from MSD on MAB hearings and outcomes, how can the public assess and form an opinion, on how “fair” hearings and decisions are, and how they do actually measure up to meet standards of “natural justice”?
F) MEDICAL APPEAL BOARD MEMBER PAYMENT
As it states under “Payment” at the bottom of page 14 in the “Info Pack”, the MAB members are paid by the Ministry of Social Development.
Although payments to Members hearing medical appeals by WINZ beneficiaries may vary due to time and other costs involved, and are apparently not publicly available, there is some reliable historic information available from a MAB hearing conducted in late October 2010. Invoiced were on 29 October 2010 by the Chairperson $ 2,234 for 3 hours preparation, 1 hour pre-meeting and hearing time, 0.83 hours “post meeting” activity and 4 hours for “report writing”. A total of 8.83 hours were invoiced! Another panel member attending the same hearing invoiced $ 1,460.50 for 3.75 hours at $ 195 per hour (plus GST), plus costs for 45 minutes at the hearing, 45 minutes for planning the report and discussing it, 45 minutes for editing and compiling the report. That member also invoiced for 100 km travel at $ 1.15 per km, being $ 115. A third panel member invoiced only $ 840 for unspecified activities. It appears that a base charge for 3.75 hours is paid, plus additional expenses. For the given example this gives a total of $ 4,534.50 for just one hearing, which admittedly involved a fair amount of documentation to be read and assessed.
It must be expected that payments will have increased since then, so medical practitioners and other health or rehabilitation professionals attending such Board meetings and to any related activities appear to be earning a good “pay” for their “services”.
By the way, here is some evidence of Dr Bratt’s efforts to seek an increase of fees paid to Designated Doctors, already in 2008:
MSD, Design. Dr. Fee Adjustment Proposal, Dr. D. Bratt, memo, copy, hi-lit, 19.11.2008
G) OTHER ASPECTS TO CONSIDER RE THE MAB AND THE LEGISLATION
Also important to consider in relation to the MAB, the legislation and processes they follow, is the fact that the Chief Executive of MSD has a huge, unreasonable amount of discretion to make decisions under provisions of the Social Security Act 1964. This degree of power is extremely worrying, as it is the Chief Executive who decides under the provisions of the Act, who should face certain obligations, and if they are not met, what sanctions will be imposed. It is also at the Chief Executive’s discretion to determine whether someone has the capacity to seek, undertake and be available to work! As we know now, this is no longer only determined based on information of a medical nature!
What this means, and how this is in conflict with modern day lawmaking, and with New Zealand’s basic principles for its legal and constitutional system, can be read in a very critical submission made by the ‘Legislation Advisory Committee’ on the Bill that led to the change of the Social Security Act in 2013.
Legislation Advisory Committee submission on the ‘Social Security (Benefit Categories and Work Focus) Amendment Bill 2012’, 01 Nov. 2012:
http://www.parliament.nz/en-nz/pb/sc/documents/evidence/50SCSS_EVI_00DBHOH_BILL11634_1_A298367/legislation-advisory-committee
Extracts:
“Understandable and accessible legislation”
“9. As an amendment Bill to the Social Security Act 1964, this Bill does not create understandable and accessible legislation. The Social Security Act must be one of the most, if not the most, amended Act on New Zealand’s statute books. Since enactment the Act has been subject to amendment 131 times. Of the Act’s current 457 sections and 32 schedules, 174 sections and 14 schedule have been previously repealed. This Bill repeals 35 sections and one schedule. It introduces 54 new sections and 2 new schedules, and amends 51 current sections and 8 current schedules. As an example, one of the new sections will be called “60GAG”. Reading through both this Bill and the Social Security Act as it will be when amended require much skipping between different sections and parts in order to understand an issue. Some of the new sections and current sections amended to include further subsections will be very long. For instance section 77 of the Act will become 14 subsections long and subsection 82 will become 18 subsections long.”
“10. All of this past and proposed amendment of the Social Security Act has left it in messy and confusing state. The Act is in need of a complete rewrite in order to create coherent, comprehensible, straightforward framework. Because of the nature of this type of legislation as a system of entitlements for New Zealanders in difficult, and potentially vulnerable, circumstances, there is even greater need for this legislation to be clear and accessible.”
“Basic principles of New Zealand’s legal and constitutional system”
“13. The Bill raises a Rule of Law issue. In a number of instances, the Bill gives the Chief Executive of the Ministry of Social Development discretion about matters that affect an individual’s entitlement for social support. For example, cl9 introduces new s 11E, which gives the Chief Executive discretion to determine whether someone has the capacity to seek, undertake and be available to work. Cl 11 introduces new s 20B, under which the Chief Executive has the discretion to regard a child as being the child of a benefit applicant if the child’s parents are unwilling to support the child because of circumstances the Chief Executive considers exceptional. Sch 1 introduces new sch 3A, which gives the Chief Executive the discretion to disregard up to $20 per week of a beneficiary’s personal earnings to meet the cost of childcare.”
“14. This approach is consistent with the Social Security Act in its present state as it does leave more than 50 decisions to the Chief Executive’s discretion, and to some extent this type of legislation does require the decision makers to have some flexibility in how they apply rules. However, the reliance on the discretion of a decision-maker is something that is being used less frequently in modern legislation. The principle that the law should be clear and should apply consistently to all is central to our legal and constitutional system. This legislation is about essential practical assistance affecting individual’s everyday lives. It should generally be possible to determine the criteria for entitlements by looking at the legislation, rather than relying on decision-making discretion on a case-by-case basis.”
“Appeal and review”
“15. The Bill re-enacts (ie repeals and replaces with a new section) s 56A of the Social Security Act which establishes the right of appeal on medical grounds to a medical appeal board in sch 2, which inserts new section 10B. This right of appeal applies to certain types of decision related to sickness, injury, disability and capacity of sickness beneficiaries to work. There is no further right of appeal from decisions of the medical board and its decision bind the Chief Executive. The board comprises three members appointed by the Chief Executive who are medical or rehabilitation practitioners or persons with expertise in vocational training or support.”
“16. This is a more limited and less independent right of appeal than applies to other decisions under the Social Security Act, which may be appealed to a benefits review committee and then to the Social Security Appeal Authority. A further appeal may be made to the High Court on questions of law.”
The Legislation Advisory Committee continued with other points of criticism in their submission on the above mentioned Bill, which upon passing by Parliament later amended the Social Security Act – with only minor changes being made to the draft Bill. The issues raised by the Committee appear to not have been addressed at all!
H) LACK OF MEDIA COVERAGE AND TRANSPARENCY OF MAB HEARINGS
It may be due to a lack of understanding of the perhaps too complex subject matter, the legal framework and medical aspects that are often involved or otherwise perhaps a total lack of interest in the fate of persons with sickness, injury and disability dependent on benefit support. In any case there appears to be extremely little reporting on what Medical Appeal Boards and their Members do, and what decisions they make.
At the same time we get damned little, virtually NO official information on outcomes of MAB hearings, as MSD’s Annual Reports no longer provide any basic, general data, and as other reports do simply not get created and published. Even Official Information Act (OIA) requests do often lead to no or only very limited information being made available, which does certainly not improve public perception of how MSD and how MABs deal with appeals.
And the only one article we found, that is somewhat “current”, and that delivers information on a case heard by a MAB, does present a more positive case and outcome, which though does not represent the rule, rather the exception. No wonder then, that the affected describe it like winning a lotto draw that MSD’s decision was overturned. That shows how abysmally appeals seem to generally be treated now, and it reinforces the need to call for substantial changes in the process we have. The changes made since 2012 do only make things harder for sick and disabled, and offer the Ministry yet more of an advantage, and this is certainly not acceptable, as it does not deliver fair justice, if it does offer justice at all!
Read this one media report, from the ‘Wairarapa Times Age’, by Cherie Taylor, from 15 August 2013:
http://www.nzherald.co.nz/wairarapa-times-age/news/article.cfm?c_id=1503414&objectid=11107582
Text Extract:
“Featherston ‘suicide’ pair win appeal”, by Cherie Taylor, 15 August 2013
“A severely-ill South Wairarapa couple who considered committing suicide fearing they wouldn’t survive once their benefit changed have won an appeal which will ensure their income isn’t cut. The couple, who featured in the Times-Age last month, and want to only be identified as Marie and Anthony, were told by Work and Income under the new welfare system Marie would be transferred from the invalid’s benefit to a benefit which required her to work a minimum of 15 hours a week.
She had been on ACC after severely injuring herself while working at a mill about 19 years ago. During the overhaul of ACC she was moved on to the invalid’s benefit. She is unable to walk or stand for long periods and experiences pain daily, requiring medication, including sleeping pills along with drugs for anxiety. Anthony has emphysema and is also unable to work.
With the changes, the pair said they were concerned they would lose about $100 weekly which would place them under severe financial hardship so contacted the Wairarapa Advocate Service for help and applied for a review of decision, which they originally lost.
Applying for a medical appeal their case was heard by three Medical Appeal Board members, Ian St George, Kathleen Williams and Kathy Stone, who overturned the ministry’s decision. In the decisions the board states Marie had tried to work in paid employment but had to stop because of exacerbations of her pain and specialists could do nothing to relieve her daily pain. The board said Marie was permanently disabled from the work accident and incapable of working 15 or more hours weekly and overturned the original decision to move her on to a job seeker benefit.
Marie told the Times-Age the final decision was a relief.
“It’s like winning Lotto only without the money. It’s really taken the stress off us both. They have no idea how much pain I was because of the stress … at least it’s over now.”
The three reviewers saw her on a better day but realised her anguish, she said. “They saw me on a good day but I think they saw my true colours … We can carry on with life now without the worry of how we will cope. Life can carry on as normal now we don’t have that hanging over us.”
However, she said she couldn’t have done it without the help and support of Wairarapa Advocate Service advocate Trevor MacKiewicz and encouraged people unsure about their entitlements to contact him. “Don’t give up. Find an advocate and keep battling. We are so humbled by Trevor’s support. He guided us.”
Mr MacKiewicz said the service’s client list had more than doubled from 100 to 250 since the couple’s story was highlighted. “People are struggling and they are worried about the changes and their obligations especially around drug testing. There are people on medications who think they won’t pass the drug test,” he said.
Meanwhile, he said he was pleased to get a successful result for Marie and Anthony.
“She can relax now and not worry about being pressured to go to work when she can’t work. She’d rather be working but she can’t.”
But, he said, Work and Income needs to look at the review system and provide adjudicators with all the information to avoid the expense and trauma of appealing decisions. “How can they make a fair decision if they haven’t got all the information laid out in front of them? Work and Income had all the medical information but didn’t provide it to the reviewer. This needs to change.”
If you need help Mr MacKiewicz or an advocate can be contacted by calling (06) 377-2525.
– Wairarapa Times-Age
I) SUMMARY COMMENTS AND CONCLUSION
We can summarise the questionable particular changes to, and also the continued, unchanged practices that form part of the MAB process and that can only be seen as being totally unfair and unreasonable, if not illegal:
1. The MAB has been and is still being appointed by the Ministry of Social Development through their ‘Appeals Coordinator’, which is a practice that raises serious issues with the proper application of natural justice. To have a truly independent hearing panel and hearing process, this practice must be stopped, and a separate, independent appointment board should be established, that appoints such Members for MAB hearings. Indeed it should be overdue to establish a totally different hearing process, where appeals would be heard by a truly independently appointed Tribunal.
2. The present legal provisions in the Social Security Act 1964 continue to not offer any further rights of appeal from decisions made by a MAB. This is not in line with handling of other decisions made under the Act, where cases can go to Tribunal and even to the courts. A MAB decision is final, and only the very restricted right to apply for a judicial review is available only on questions of law, that may come with a MAB decision that’s been made. Hence a solution to this would be to abolish the present MAB hearing system, and instead establish an independently appointed Tribunal hearing such cases, where medical and also legal experts hear cases, that may also leave the option to further appeal hearings before a court.
3. The introduction of a proper, further internal review of original decisions by the ‘Appeals Coordinator’ is a welcome improvement to the past hearing process, as this makes it possible for dealing with not earlier detected flaws and mistakes in such MSD decisions before a proper appeal hearing may need to be set up and conducted. Questions remain though how “neutral” and “independent” such an internal reviewer in the form of the ‘Coordinator’ can be, given the position is one within the Ministry itself.
4. The introduction of a “Ministry presenter” may appear justified under natural justice principles, as it allows the Ministry “to be heard” before a MAB hearing panel. But in effect, this new part of the process does actually create a further imbalance that significantly favours the Ministry and their position. The MAB Members are already appointed by the Chief Executive of MSD (through the ‘Coordinator’), the MAB Members are trained and guided by MSD, they get paid by MSD, and they apply rules and law governed by legislation and policy for/of MSD. This already gives MSD too much influence on the whole hearing process as it was and still is. There appeared to be no significant issues with the hearings as they used to be conducted without the use of such a “presenter” in the past. Now the Ministry has this professional, inside expert to their avail to present and defend their case and the made decision, while the appellant will usually be a total layperson, unfamiliar with much policy and with little legal knowledge. As a sick and disabled person the client does usually not have the means to afford expert advice and representation. The “presenter” is indeed an unacceptable new player, and this practice to involve such should be stopped. It is of additional worry that according to information on page 27 of the new “guide” in use for MAB Members that “presenter” may not only be a case manager, but even a Service Centre Manager.
5. The ‘Report for the Medical Appeals Board’ raises questions about its quality and it being “neutral”, as it is prepared by the ‘Coordinator’, appears to allow the Ministry to present more information and more arguments to defend their decision, than the appellant and WINZ client. It does in the present form give the Ministry a head start in the proceedings, as it appears to be covered at the start of hearings, allowing the “Ministry presenter” to present and comment on it. This puts the appellant in a “defensive”, disadvantageous situation, which is not sufficiently in line with the fairness approach that should be applied, and is thus unacceptable. The Report needs to be revisited and changed to present relevant details more equally. As the appellant will usually be a sick, disabled layperson, she/he will even with the help of a support person struggle to present an equally well argued case, even if further submissions may be allowed.
6. The practice to also enable the Ministry to bring in their legal representative, usually an expert hired by Crown Law, when the client and appellant should bring in a solicitor, may appear justified, and strictly speaking must be allowed. But as the whole process is already significantly favouring the Ministry and the “presenter”, this will only add to this clear imbalance before a MAB hearing. It is insulting to inform a client and appellant to seek “legal advice” from the under-resourced, not always easily accessible and available “advisors” working for Community Law Centres and the Citizen Advice Bureaux. The advisors there only offer rather general legal advice and offer no equal quality and expert advice as Crown Law solicitors have, who often are hard to find experts on social security legislation. The appellant is with the recommended handling of legal representations also severely disadvantaged.
7. It is unacceptable to refuse appellants to make their own audio or video recordings of MAB hearings, in light of the fact that the Ministry seems to insist that their “Fraud Unit” equipment is used, should a MAB allow any recording of proceedings. In any case, where one party is allowed to use the equipment they offer to make recordings, the same right should be given to the other party, i.e. the appellant. Also it should be made clear to MAB Members hearing cases, that it is more appropriate to allow recordings, as this ensures transparency and a greater likelihood of fairness and reasonableness being applied in hearings and in making decisions. Denying recordings risks being seen as attempting to deny transparency and fairness.
8. The practice must be stopped to allow “Designated Doctors” and certain other health and rehabilitation professionals to sit and hear MAB appeals, if they have been consulted with, have in many cases been selected, endorsed and approved for the purpose of delivering services to the Ministry in the form of “second opinions” and work ability assessment services. The apparent practice of allowing “Advisors” and “Coordinators” employed by MSD to have any role whatsoever in helping “identify” and “recruit” such professionals, who mostly are general practitioners, and to even train and “mentor” them, raises questions as to the true independence and objectivity of such health professionals. Only medical practitioners and rehabilitation professionals that do otherwise NOT offer any services to the Ministry should be allowed to be Members on MAB panels. Designated Doctors and/or Work Ability Assessors contracted by MSD must generally not be allowed to hear appeals.
And here is one other matter that deserves to be seriously considered by all persons who may face a MAB hearing. Representation may be hard to get for most on benefits, but without any support, be this at least from an experienced advocate with sufficient knowledge and experience, or better even with professional legal representation, you may be left in a situation where your chances may be limited and low to succeed with an appeal. The importance of beneficiaries having representation is also highlighted and discussed in a report published by ‘Community Law’, called ‘ACCESS TO JUSTICE’, from October 2014:
“A COMMUNITY LAW CANTERBURY ACCESS TO JUSTICE RESEARCH PROJECT”
Click to access Access-to-Justice-online-edition-11-Dec.pdf
That link is provided by the ‘Beneficiary Advisory Service’: http://www.bas.org.nz/?p=526
This post has been prepared and published by
‘Quest for Justice’
Auckland, New Zealand
first published: 18 March 2015
updated on: 20 Sept. 2016
Here is a PDF copy of this post, but please be aware that some links and attachments are only accessible in the original post above:
mab-process-how-msd-discretely-changed-it-further-disadvantaging-clients-nzsjb-updated-20-09-16
P.S.:
As there are further changes due to be made to the social security legislation, presently before Parliament in the form of the ‘Social Security Legislation Rewrite Bill’, we can expect that the Social Security Act 1964 will be rewritten and re-enacted soon. But as most provisions will only be “rewritten”, the sections and some wording re Medical Appeal Boards and hearings before them may change, not the way the law and processes will be applied!
ADDENDUM – 22 MARCH 2015:
Further to the above, there is some more new information that has just surfaced and which is of relevance to some information contained in this post, where “Designated Doctors” are mentioned. As we know WINZ use these medical practitioners for getting “second opinions” on their clients’ health conditions and ability to work. The post mentions that Designated Doctors also sit on the Medical Appeals Board, hearing appeals against decisions WINZ case managers usually make – based on the very Designated Doctor “recommendations”.
As the post here has high-lighted, there seems to be little true “independence” of these Medical Appeal Boards.
Here is another presentation by Dr David Bratt, the MSD and WINZ Principal Health Advisor, that has surfaced:
Click to access Fri_room6_1400%20Bratt%20Designated%20Doctor%20Training.pdf
It reveals how Dr Bratt works with his Designated Doctors, who he “trains”, “mentors” and liaises with – partly directly, partly through his Regional Health Advisors and Regional Disability Advisors that are stationed in each Regional Office of MSD and WINZ. MSD also use the Health and Disability Coordinators to work and liaise with health care providers and of course medical practitioners, some of which will turn out to be Designated Doctors. Indeed they seem to be involved in finding “suitable” ones to “serve” for WINZ and MSD.
So we can clearly see how the UK approach is gradually being phased in here. See how Dr Bratt warns his Designated Doctors to be careful with wording their reports to WINZ (page 20), and how he seems to take a particular interest in cases where a client may “dare” to make a complaint about a Designated Doctor to the Health and Disability Commissioner (page 23)!!! MSD and Dr Bratt are of course aware that clients can access certain information and that this can create awkward situations for those involved in examining and assessing clients. Hence they will use smart methods to report details in words that will minimise the risk of legal challenges. They know now that some sensitive information has been revealed and is in circulation, that they never wanted to come out.
ADDENDUM – 19 April 2015:
In a recent publication Frances Joychild QC wrote about the problems WINZ beneficiaries, and poor persons generally, have in getting access to justice. She also mentioned a case of a client of hers who appears to have been heard by a Medical Appeals Board and who got a decision that was so appalling, it led to an application for a judicial review. Frances Joychild is one of few experts in social security legislation and the law in that area, so her expressed concerns about how poorly beneficiaries are served when it comes to legal representation and justice should be taken very seriously. Here is a link to the ‘Evening Report’ publication from 24 March 2015:
Extracts:
“Some of the most disturbing and alarming cases I have dealt with recently come from citizen’s dealings with departments of state. The most vulnerable group in New Zealand, and the most stigmatised, are without a doubt income tested beneficiaries. There are increasingly large discretions held by WINZ officials largely without legal overview by independent lawyers. The rule of law fades in such situations, even despite the best meaning and well intentioned officials.
I have heard regular complaints of benefits being randomly cut off, without notice. And it taking weeks or even months and numerous phone calls or visits to WINZ offices to get them reinstated.”
“Staff have so many discretions over beneficiary entitlements and beneficiaries are so dependent on their benefit to meet their most basic needs that the vast majority are too afraid to rock the boat. For several years now persons have been unceremoniously and unlawfully removed in droves from sickness and invalids benefits and subject to punitive job search conditions for which many are not equipped mentally or physically. I am aware of some who have ended up off benefit entirely. Their only recourse is to a Medical Appeal Board (MAB) panel and then to judicial review. They cannot access the Social Security Appeal Authority.
Certainly the rules of natural justice appeared completely foreign to the MAB panel I sought to review judicially.
Likewise the assessing GP’s appeared to be acting as an arm of WINZ rather than an independent health professional.
But my proceeding never reached the courts. It was made impossible not to settle. One could sense the Ministry concern that a test case challenging the practices surrounding removal from benefit had to be avoided if at all possible.
Clearly beneficiaries have no money to employ a lawyer. Most of the problems they encounter are not covered by legal aid. Some are lucky enough to have access to unpaid beneficiary advocates. I suspect a very large number do not. It is extraordinary that in an area of major legal complexity, wide government discretions and deeply disempowered citizens that the Rule of Law is at its weakest.”
Read the whole commentary or report on the ‘Evening Post’ website.
SPECIAL POST: DISABLED AND SICK INCREASINGLY HARASSED IN A NUMBER OF “DEVELOPED” COUNTRIES: An appalling case in Canada
Posted by nzsocialjusticeblog2013 in Uncategorized on 01/03/2015
DISABLED AND SICK ARE INCREASINGLY BEING HARASSED IN A GROWING NUMBER OF COUNTRIES – HERE IS AN APPALLING CASE IN CANADA
Some members from DPAC (Disabled People Against Cuts) in the UK have made us aware of a sad case of appalling treatment of a disabled man with a serious heart condition who is dependent on social security payments in Toronto in Canada.
They provided the following link to a post on the website of ‘ONTARIO COALITION AGAINST POVERTY‘:
The headline of a post says this:
‘Emergency Action: Phone/Email the Minister Today, Prevent a Man from Being Made Homeless Due to a Computer Glitch’
Extract:
“A 53 year old man with numerous health issues, including an upcoming double bypass surgery, Andrew McLean, is about to be evicted because of an ODSP computer error. Since the rollout of the Social Assistance Management System (SAMS) computer system last autumn, Andrew has seen his life turned upside down. Like many Ontarians on social assistance and disability, due to “glitches” in the new system, Andrew received his cheque late. His landlord initiated eviction proceedings against him based on “late payment of rent,” and won an eviction order at the Landlord Tenant Board for Saturday, February 28.
The Ministry of Community and Social Services has acknowledged that they are to blame for this fiasco. Andrew’s worker has written several letters stating that they are working on fixing issues like these with SAMS. This hasn’t happened and shows no sign of happening soon. The Ministry has refused to do anything other than say “we’re working on it,” while a man who needs significant and pressing medical help is left worrying about where he will sleep Sunday night.
This has had a very negative impact on Mr. McLean, who says: “It’s running me down, I feel tired all the time, I get chest pains and headaches because I don’t know what to do. It’s been an incredible stress. I can’t live my regular routine due to stress like this. And nobody can give me a straight answer about how to fix this, a straight answer about where I am supposed to live!”
We refuse to accept half-hearted excuses and apologies from the very Ministry that put Andrew in this situation in the first place. OCAP demands:
• That the Ministry prevent this eviction or, failing that, take on the responsibility of finding Andrew affordable, accessible and secure housing, given that they are the ones responsible for him facing the prospect of homelessness.
• That the SAMS experiment be deemed a failure, and that all OW/ODSP recipients impacted by it resume receiving benefits in the same manner and amount as prior to its rollout
The Ministry of Community and Social Services is responsible for the fact that Andrew is facing homelessness, and no excuses or stalling can change that fact. If Andrew isn’t housed immediately, join OCAP on Wednesday, March 4 at 12:00PM at the Macdonald block of Ontario Government Buildings (900 Bay, just past Wellesley) where OCAP will confront the MCSS and demand housing for Andrew, along with a repeal of SAMS, ensuring benefits are available to all Ontarians who need them, regardless of whatever computer system the province decides to use. We won’t accept any more passing of the buck, just give us what we are owed!”
They have launched an appeal for action by supporters, to send emails or tweets to the two Ministers involved:
MINISTER OF COMMUNITY AND SOCIAL SERVICES
Dr. Helena Jaczek
hjaczek.mpp@liberal.ola.org
Ministry phone: 416-325-5225
Constituency phone: 905-294-4931
Twitter: @HelenaJaczek
MINISTER OF HOUSING AND MUNICIPALITIES
Ted McMeekin
tmcmeekin.mpp.co@liberal.ola.org
Ministry phone: 416-585-7000
Constituency phone: 905-690-6552
Twitter: @TedMcMeekin
There is more background information on Andrew McLean and his situation that can be read on the original blog.
Further action is planned and has been announced in that blog post, which is recommended reading. It shows how the introduction of “new systems”, be this for “work capability assessments”, for other assessments, for outsourced “work programs”, or for simply paying benefits to persons in need, is leading to new, numerous challenges, problems and unacceptable, often inhumane failures, and even blatant harassment.
We strongly suggest those here in New Zealand, who share their concern for disabled facing the cold, hard face of unsympathetic and failing “new” welfare systems, whether here, in the UK, or in this case in Canada, send their messages in support of the man, to demand the Ministers take immediate action to provide him with secure housing and reliable, sufficient, living costs covering benefit support!
DPAC themselves are now focusing on the new Provider they will soon have start their work in the form of assessing sick and disabled in the UK for “work capability”.
The Provider is called MAXIMUS and comes originally from the US, the home also of UNUM, about which we wrote repeatedly in a number of posts on this site. MAXIMUS are making many promises, but will use and apply the same “Work Capability Assessment” (WCA) that ATOS Healthcare has been using for years, to assess sick and disabled for their “fitness” for work, as expected by the Department for Work and Pensions (DWP) there.
Those who will have followed posts on this humble blog will be well informed about what we are writing here.
There is some impressive action planned to express opposition and anger about the DWP bringing in yet another corporate style “assessment provider”, to continue the onslaught against human rights and dignity of the sick and physically and mentally impaired, who in most cases are unable to work, certainly in the common, competitive “jobs” that remain on the open employment market.
Read about what is about to happen all over the UK very shortly, by clicking this link, provided by DPAC:
This is the “home” page of the DPAC website by the way:
Let us show solidarity across our shores and borders, to defend the rights of the seriously ill and the disabled, no matter where they and their rights are being attacked, particularly with new “cost saving” measures, such as the ones that have also crept into the social security system here in New Zealand!!! Cutting and denying benefits, putting endless unreasonable “expectations”, “obligations” and other pressures on the weakest of the weak is a crime, a crime against humanity and civil rights.
(More to follow)
THE DISCREDITED, INDEFENSIBLE WORK CAPABILITY ASSESSMENT (WCA) IN THE UK, AND WHAT ITS DEMISE MUST MEAN FOR NZ WELFARE REFORMS, PART 2
Posted by nzsocialjusticeblog2013 in Medical and Work Capability Assessments, MSD Policy and Processes on 28/01/2015
THE DISCREDITED, INDEFENSIBLE WORK CAPABILITY ASSESSMENT (WCA), RESPONSIBLE FOR ENDLESS HARASSMENT OF SICK AND DISABLED IN THE UK, AND WHAT ITS DEMISE MUST MEAN FOR NZ WELFARE REFORMS
Contents:
A). INTRODUCTION – THE WORK CAPABILITY ASSESSMENT (WCA)
B). THE WORK CAPABILITY ASSESSMENT HANDBOOK FOR HCPs
C). THE ASSESSMENT PROVIDER ATOS AND THE NEW PROVIDER MAXIMUS
D). INTERPRETATION OF ‘DECISION MAKER’ AT DWP
E) THE 5TH AND FINAL REVIEW OF THE WORK CAPABILITY ASSESSMENT
F). CONCLUSIONS AND COMMENTS ON THE ‘INDEPENDENT REVIEW OF THE WCA – YEAR FIVE’, AND THE ONES BEFORE
G). DR LITCHFIELD’S SUPERFICIAL IMPRESSION OF NEW ZEALAND’S WORK CAPABILITY ASSESSMENTS AND WELFARE REFORMS, AS REFERRED TO IN HIS FINAL ‘INDEPENDENT REVIEW’ OF THE WCA
H). THE WCA REVIEWER DR LITCHFIELD AND HIS LINKS TO ‘FIT FOR WORK’
I). OTHER INFORMATION ABOUT DR LITCHFIELD, HIS BACKGROUND AND WORK
J). CRITICISM OF THE WCA FROM THE UK MEDICAL PROFESSION
K). INFORMATION ABOUT THE WCA, CRITICISM OF IT AND THE DWP – BY SUPPORT GROUPS, A TRIBUNAL UNIT AND THE MEDIA
L). THE MAN AND MIND BEHIND THE ‘ALL WORK TEST’, THE ‘PERSONAL CAPABILITY ASSESSMENT’ – AND CONTRIBUTOR TO THE ‘WCA’
M). AYLWARD, WADDELL ET AL, ALL WORKING ON THE SAME AGENDA
N). FORMS OF WORK CAPABILITY ASSESSMENTS IN USE IN NEW ZEALAND
O). THE CONCLUSIONS THAT NEW ZEALANDERS SHOULD DRAW FROM THE DISASTROUS WELFARE REFORMS IN THE UK, WHERE THE FLAWED AND HARSH APPROACHES HAVE NOT DELIVERED, AND WHERE THE WCA IS NOW DISCREDITED
P). APPENDIX
H). THE WCA REVIEWER DR LITCHFIELD AND HIS LINKS TO ‘FIT FOR WORK’
Some light deserves to be shed onto the Reviewer Dr Litchfield himself, given his involvement with ‘Fit For Work’, his work in other capacities, and also his long term position with BT, a large UK employer. It deserves some questioning, why a Reviewer from his kind of background was the supposed “appropriate” appointment. The former Reviewer appeared to come from a slightly more independent kind of professional background, some will think.
Dr Paul Litchfield has been Chief Medical Officer for BT (British Telecom) and he is a member of ‘Fit For Work’, a “think tank” kind of “stake holder group” and lobby organisation:
Re the author or “Reviewer”, look up info via these websites:
https://uk.linkedin.com/pub/paul-litchfield/44/37b/104
http://www.fitforworkeurope.eu/UK/About/paul-litchfield.htm
from LinkedIn:
“Summary”
“Paul’s main professional interest for the past decade has been occupational mental health and he has been involved in UK national and European initiatives to improve rehabilitation back into work after mental illness and to reduce the stigma of mental ill health. Within BT he has created a framework for health, safety and wellbeing that has driven very significant improvements to the benefit of both the workforce and the business and the company’s performance in these areas is widely viewed as exemplary. Key elements of the approach have been partnership with the Trade Unions and the transformation of data into management information that is of use in managing the company better. He has published and lectured widely not only on mental health issues but also on sickness absence, hazard control and ethics in occupational health.”
He has been ‘Chief Medical Officer’ for BT Group plc (British Telecom) for 14 years, and is thus a medical professional with a corporate business appointment and links.
‘Fit for Work UK Coalition’ website:
http://www.fitforworkuk.org/
‘Fit for Work Europe’ is made up of only 5 partner countries, being the UK, Netherlands, Switzerland, Hungary and Turkey.
http://www.fitforworkeurope.eu/About/our-history.htm
Under the page ‘Our History’ of ‘Fit for Work Europe’ we find that ‘Fit for Work’ was originally established in the UK, and “expanded” into Europe.
Their website informs:
“Fit for Work Europe is a multi-stakeholder Coalition, driving policy and practice change across the work and health agendas. We aim to deliver more investment in sustainable healthcare by promoting and implementing early intervention practices. Research shows this approach is the most effective way of ensuring people with MSDs (musculoskeletal disorders) can enter and remain in work across the EU and globally.”
Also is some info available on Professor Stephen Bevan, their Founding Director
Professor Stephen Bevan, Founding Director
http://www.fitforworkeurope.eu/About/stephen-bevan.htm
“Stephen is Director of the Centre for Workforce Effectiveness at The Work Foundation and an Honorary Professor at Lancaster University. He joined The Work Foundation in 2002 as Director of Research from the Institute for Employment Studies (IES). In 2007, he founded the Fit for Work project and in 2009 he launched the European Coalition.
Stephen has carried out research and policy work for the Number 10 Policy Unit, HM Treasury, the Cabinet Office, the Department of Health, the Department for Work and Pensions and the European Commission. He has also advised many blue-chip companies on aspects of HR strategy and practice. Stephen has conducted research on high-performance work practices, employee reward strategy, staff engagement and retention.”
A UK report from 2007 is quoted, supported by a “grant” from ‘Abbott’:
‘Fit for Work? Musculoskeletal Disorders and Labour Market Participation’
Click to access 44_fit_for_work_small.pdf
Stephen Bevan, founder of ‘Fit for Work’, was co-author of that report. The “Foreword” was presented by Professor Dame Carol Black, the UK Government’s then ‘National Director for Health and Work’, who is known to have based a lot of her own views on the “research” and “findings” by Professor Mansel Aylward and others at the ‘Centre for Psychosocial and Disability Research’ (once “sponsored’ by ‘UnumProvident’).
The report starts with the ‘Executive Summary’ stating a perceived challenge:
“The health of British workers is giving us serious cause for concern. Up to a quarter of the workforce is not healthy enough to drive the improvements in productivity which the UK needs to thrive in an increasingly globalised, knowledge-based economy. Despite record levels of employment and job growth, over 2.6 million people of working age are claiming Incapacity Benefit (DWP, 2007). There is overwhelming evidence that worklessness is, itself, bad for health and that rehabilitation back into work can positively affect physical health, psychological well-being and raise people out of poverty.”
While lamenting the poor health, sickness absence and lack of productivity of UK workers, the report does on page 11 (under ‘Introduction’, 3rd section) bluntly admit the following:
“But, as ever, the truth about the health and well-being of the UK working population is a little more complex than the headlines imply and, although the overall rate of sickness absence has stayed at about the same level for the last thirty years or so, we have witnessed some very significant – and concerning – changes in the nature and composition of work-related incapacity during this period.”
On page 12 that report then comes to the crucial issue it tries to address:
“Despite the stability in the headline rate of sickness absence, we have witnessed a significant increase in the proportion of the total made up of longer-term absences: workers with more serious illnesses or chronic conditions. By some margin, the majority of these longer-term absences can be attributed to two ‘clusters’ of conditions. The first is what is now popularly known as ‘stress’, though should more accurately be termed ‘common mental health problems’. These include depression, anxiety disorders and a number of other conditions. The second, known as musculoskeletal disorders, are the subject of this report. ‘Stress’ grabs the headlines because, each year, work-related ‘stress’ results in the loss of over 10 million working days, at a cost to UK employers of in excess of £3.7 billion (Lehki et al, forthcoming).”
Own Comment:
These are the same kinds of “issues” Aylward, Waddell, Burton et al have repeatedly been stressing in their reports. They mostly conducted “comparative studies” on paper, and interviews with selected groups of affected. Comparing statistical and other medical and even economic reports on “worklessness” and benefit dependence, may reveal some form of association and apparent correlation between “conditions”. But it does not necessarily give a clear cause and effect explanation; like that unemployment itself causes illness and incapacity. We know from experience that ill health, serious and permanent disease and forms of physical and mental incapacity causes unemployment, but the latter may only cause ill health in some cases. What nobody appears to have considered is, that the usually resulting POVERTY that comes with unemployment and long term benefit dependence, may actually be the real cause for further mental and physical illness – not just unemployment itself.
On page 16 of that report it is revealed how the “research” was conducted for the publication:
Extract:
“In addressing the objectives outlined above, we have used the following methods:
Desk Research:
Here we have drawn on existing published research from the medical, occupational health and health economics literature. This has enabled us to draw together the evidence on the nature, extent, impact and costs of MSDs to the economy, to employers and to individuals. We have examined a range of MSDs to assess the extent to which their impact varies and where policy and practice has been both strong and weak in terms of prevention and intervention.
Expert Interviews:
We have conducted interviews with experts (see Appendix 1 and 2) across a number of disciplines to identify the main areas of policy and practice which need to be addressed by policy-makers, health professionals and by employers.”
Own Comment:
That is the way much of the research by Professor Aylward was also conducted, by researching other reports, analysing selected data, and writing new reports. What has been shown through reading their reports is, that there is a tendency to “trivialise” certain health conditions or illnesses, such as a fair few mental health conditions that are also included in the DSM, by simply calling them “common mental health problems”. The same is done in this report, also with MSD, simply referring to it as one of “musculoskeletal disorders”. These “experts” are actually attempting to blur the line between more severe conditions, and those that appear to be less severe. Aylward and others admitted in later reports, that this whole area of disability and “worklessness” requires further research and study, as existing reports do not offer sufficient information to draw well based conclusions.
Hence perhaps their cautionary “note on definition” on page 17:
“In the absence of a consensus on a clinical definition of many MSDs, navigating the literature on their prevalence, incidence, diagnoses, epidemiology, treatment and cost to society is a difficult task. The lack of standardisation and validation of the terminology and classification of MSDs is one of the reasons for the contradictory findings in the literature regarding the diagnosis, epidemiology, treatment and rehabilitation of these conditions (WHO, 2003).“
While the contents of the report may not be fully discredited, the above comments do at least indicate, that it should be treated with a lot of caution, in regards to its value and reliability. What appears clear is that MSD can be caused by work, and can become worse if unhealthy work is continued. I note that the medical researchers Waddell and Burton are repeatedly quoted in this report. Like with Professor Mansel Aylward, the two are known to have done a lot of “comparative studies”, in the form of comparing statistical data contained in various other reports. These may show some “correlations” between sickness and disability, and work absence with longer term incapacity and benefit dependence. But that alone does not necessarily mean that sickness and disability are the result of not working, it is more likely to be the other way around. Also is there not sufficient evidence to generally claim that work in ordinary paid jobs on the competitive market is “beneficial” to health. Much work has certain detrimental effects on physical and mental well-being, and instead the emphasis should perhaps rather be to promote some moderate physical and mental activity, where possible, as that may be beneficial. This does though not equate to activity in competitive, paid work.
Under ‘Interventions’ on page 36 the “biopsychosocial model” and “work” are brought into the report:
“The biopsychosocial model is an explanatory framework that recognises the importance of psychological and social factors in determining how MSD sufferers cope with their conditions. The following section provides a brief overview of the biopsychosocial model and outlines the implications that it has for the workforce.”
“The biopsychosocial model advocates that clinicians, occupational health professionals and others should assess the interplay between the biological (eg disease, joint damage), the psychological (eg disposition, anxiety) and the social (eg work demands, family support). Figure 3 below illustrates the role which psychological disposition and behaviour can have on the way a physical ‘injury’ (such as back pain) is approached by a patient. In this example, the injured patient risks entering a self-reinforcing cycle of incapacity,
delayed recovery and even depression if their dominant response to pain is to ‘catastrophise’ it.“
Under chapter 5 ‘The wider Impact of MSDs’ the report stresses the costs caused by MSD, by illness generally, particularly through workplace absence, leading to lost productivity. A range of ‘conclusions and recommendations’ are presented under chapter 6, at the end of the report, which are aimed at reducing the harm and costs caused by MSD, and which could improve workers’ productivity. The underlying message to employers, employees and government is: Focus on capacity, not incapacity. Also the claim is, while MSD affects the ability of some to work, it is work that is generally good for a person’s long term health. Even when unwell or injured, remaining at work in some capacity is better for “recovery” than being absent from work. While some recommendations may represent common sense approaches, others seem rather questionable, like telling employers to challenge GP’s diagnosis, assessment and “sick notes”, same as to avoid a “risk management” mentality when dealing with a sick employee. Many GPs will feel challenged with applying a “biopsychosocial” approach, which involves potentially complex interrelationships and interactions, and can be ambiguous or misleading.
Appendix 1 lists expert witnesses that were interviewed, and amongst others, there was clearly a rather prominent representation by DWP, their favoured “experts” and also the UNUM insurance corporation:
Dame Carol Black – ‘The Government’s National Director for Health and Work’
Dr Bill Gunnyeon – ‘Chief Medical Advisor’ ‘Department for Work and Pensions’
Dr Mike O’Donnell – ‘Chief Medical Officer’ ‘UNUM Provident’
Prof. Gordon Waddell – “orthopaedic surgeon with clinical and academic interests in the field of back pain and related disorders”, but who also (once) worked at the ‘Centre for Psychosocial and Disability Research’ (formerly “sponsored” by UNUM), headed by M. Aylward
Dr Nerys Williams – ‘Medical Policy Advisor’, ‘Department for Work and Pensions’
Hence we have a strong line-up of “experts” that come from vested interest parties, who have also a name for their strong position on the “health benefits of work”.
But with the further above stated fact that sickness absence in the UK has remained rather steady for over 3 decades, what then is the justification and purpose for the position presented with this report? It appears that the main goal is to create a “healthier” Britain, where more people work longer, and produce more, and where attempts are made, to even engage sick and disabled into work, so that socio-economic costs are reduced, simply to be better able to compete with work forces of other nations. The agenda behind “Fit For Work” is therefore rather a politically and ideologically driven one, it seems, where a step change is asked for to be applied by the medical profession, employers and also government.
Interpretation: MSD’ stands for ‘Musculoskeletal Disorder(s)’
Dr Litchfield already being somewhat biased towards a “fit for work” approach
The very involvement of Dr Litchfield with “Fit For Work” appears to show at least a “slight” conflict of interest, which he has, as the Reviewer of the WCA. He is with his membership in that organisation already taking a position that supports the underlying approaches and policies that are reflected in the WCA and the “policy intent” behind it. The report shown above shows the strong influence that leading “experts” had on “Fit For Work” and research they rely on, and it resembles a lot the same messages we have over the years heard coming from the likes of Professor Mansel Aylward, former Chief Medical Advisor to the DWP. Also has Dr Litchfield, or have “Fit For Work”, cooperated with the DWP, and allowed input from vested interest parties such as UNUM. One would have thought that a Reviewer of the WCA would be more suited if coming from a more neutral kind of background.
I). OTHER INFORMATION ABOUT DR LITCHFIELD, HIS BACKGROUND AND WORK
‘the void’ reports on the Reviewer, Dr Litchfield, under this link (27 Feb. 2013):
https://johnnyvoid.wordpress.com/tag/dr-paul-litchfield/
“Member of ‘Fit For Work Coalition’ Brought in to Scrutinise Atos”
Extract:
“The DWP have brought in a member of the ‘Fit For Work Coalition’ and the neo-liberal think tank the World Economic Forum, to carry out a review of the brutal assessments for sickness and disability benefits.
Dr Paul Litchfield will replace Professor Malcolm Harrington who was sidelined after being mildly critical of the Work Capability Assessment (WCA), the relentless health and disability tests which have driven some claimants to suicide.”
‘dns Disability News Service’ reported on Dr Litchfield’s appointment (13 Dec. 2013):
‘Fitness for work’ test: government ‘should start again from scratch’
http://disabilitynewsservice.com/2013/12/fitness-for-work-test-government-should-start-again-from-scratch/
“Disability charities appear to be losing patience with efforts to reform the much-criticised “fitness for work” test, as the government’s new independent reviewer delivered his first report.”
The ME Association reported on Dr Litchfield’s Independent Review of the WCA:
“We report on the fifth and final Independent Review of the Work Capability Assessment 28 November 2014”
“Dr Charles Shepherd reports on a meeting at the DWP on Thursday November 27 at which Dr Paul Litchfield gave a presentation on the fifth and final independent review of the Work Capability Assessment (WCA).”
Extracts:
‘ESA outcomes of WCA: Quarterly official statistics’
“I would also draw attention to the latest quarterly statistics on ESA produced by the DWP:
http://www.gov.uk/government/uploads/system/uploads/attachment_data/file/352885/esa_wca_summary_Sep14_final.pdf
In particular, the most striking change that has been taking place between 2008 and 2013 (provisional figures) is in the numbers of people being found:
• FIT FOR WORK: 2008 = 64%; 2013 = 27%
• UNFIT FOR WORK AND PLACED IN THE WRAG: 2008 = 24%; 2013 = 15%
• UNFIT FOR WORK AND PLACED IN THE SUPPORT GROUP: 2008 =12%; 2013 = 58%
So there has clearly been some effect as a result of the changes that have been made and the work that both Dr Litchfield and the Fluctuating Conditions Group and Mental Health Groups have been doing – especially the emphasis on the need for claimants to be able to do descriptor tasks reliably, repeatedly, safely and in a timely manner. Anecdotal feedback to The MEA also indicates that there ARE more people being placed in the support group and that less people are having to go to appeal.
But many people with ME/CFS, who have a genuine claim to this benefit, are still having to go to appeal in order to obtain ESA.”
J). CRITICISM OF THE WCA FROM THE UK MEDICAL PROFESSION
Over the years there has also been increasing criticism of the Work Capability Assessment by senior and also less senior members and spokespersons from the British medical profession. It was also the British Medical Association that spoke out clearly against the WCA and how it is being applied and thus causes serious harm to many of the sickest, the disabled and the weakest in society. In the following I present various critical to condemning reports and statements from various stake holders, also quoting professionals in the medical field:
1. The British Medical Association states this about the WCA:
Extract from a publication on their website:
“The Work Capability Assessment”
“Background
The Work Capability Assessment (WCA) is the method used to judge whether claimants are eligible for the Employment and Support Allowance.
The system, first introduced in 2008, is currently administered by ATOS healthcare. As part of the assessment, ATOS will sometimes request a factual report from a claimant’s GP based on the information contained within the claimant’s patient medical report.
It is not part of the GP’s role to provide any opinion or recommendation on the patient’s capability to work as part of this process.”
„BMA position
The BMA has for some time raised concerns about the WCA. We believe that the current process is insufficiently rigorous and consistent, and could cause avoidable harm to some of the weakest and most vulnerable members in our society.”
“The BMA has called for urgent reform to the WCA based on specific concerns about the system:
● The computer-based process used to assess claims makes it very difficult for health professionals carrying out the assessments to exercise their professional judgement effectively. We strongly believe the computer system is in need of urgent reform.
● The fact that initial decisions are overturned in almost 40 per cent of appeal cases reinforces these concerns. It means that large numbers of claimants are denied the full level of benefit that they are entitled to until their appeal is heard and a fresh decision is made, leaving many in an intolerable position.
● That there has been a lack of progress in implementing the recommendation of the Harrington Report that decision makers should actively consider obtaining further documentary evidence in every case before reaching a final decision. If the recommendation is implemented appropriately, with GPs providing factual information, it should result in better-informed decisions being made about eligibility for ESA by DWP decision makers, earlier in the process. As well as making the system fairer for claimants, this should also significantly reduce the administrative cost of dealing with so many appeals.”
The following link provides a MS Word document containing a BMA briefing on the WCA to the UK Parliament (from January 2013):
bma.org.uk/-/media/files/word%20files/working%20for%20change/negotiating%20for%20the%20profession/wcabriefing.docx
2. My Fibromyalgia published this on their website (fr. 23 May 2012):
http://www.myfibromyalgia.co.uk/2012/local-conference-of-the-british-medical-association-votes-against-atos-the-wca/
‘Local conference of the British Medical Association votes against ATOS + the WCA’
3. The Royal College of Psychiatrists publishes this on the WCA:
“The Work Capability Assessment and people with mental health problems: the case for better use of medical evidence”
http://www.rcpsych.ac.uk/policyandparliamentary/welfarereform/workcapabilityassessment.aspx
A joint statement the College published with other agencies:
Click to access WCA%20Medical%20Evidence%20joint%20briefing%20April%202012%20V%20FINAL.pdf
4. ‘Benefit Claimants Fight Back’ published a letter by various stakeholders, support groups and also leading doctors, incl. the BMA (27.09.2011), see this link:
Extract:
“Open Letter on Atos ‘Healthcare’ to the BMJ and RCN”
“27 September 2011”
“Dr Michael ChamberlainChairman, BMJ (British Medical Journal) Group Board
Andrea Spyropoulos, President,Royal College of Nursing”
“Dear Dr Chamberlain and Andrea Spyropoulos”,
“Re: Atos Healthcare and parent company Atos Origin”
“As sick and disabled people, carers and other concerned people, including professionals, we are writing to you to urge the Royal College of Nursing and BMJ Group to immediately end your relationship with Atos, including stopping any advertising of Atos jobs or Atos the company on your websites, and not having Atos at the RCN Bulletin Jobs Fair 13-14 September, or the BMJ recruitment fair 30 September to 1 October 2011 in London.
As you know, Atos currently has a £100m a year contract with the Department for Work and Pensions (DWP) to carry out examinations for disability benefits.
We are outraged that Atos is profiting from denying those of us who are sick or disabled, the benefits we need to survive and maintain our level of health. In May, at the protest outside Atos headquarters, a number of people spoke about our experiences of the examination, being denied benefit and having to appeal to get it back. One woman testified that her brother, who had severe depression, committed suicide after being cut off. See:
http://www.guardian.co.uk/society/video/2011/may/11/disability-protest-atos-origin-video
The media have exposed more of the dire consequences of Atos’ decisions. In February, the Daily Mirror highlighted the case of a Derbyshire man with a heart condition, found fit for work, who had to go through tribunal to appeal, then was awarded Employment and Support Allowance (ESA) but died of a heart attack the day before his next Atos exam was due.
A Channel 4 News report on 27 July 2011 acknowledged what thousands have been saying: it interviewed the heartbroken partner of a critically ill man whom Atos denied his entitlement on grounds that he was ‘fit for work’ – he died less than three months later. How many more people have died following such cruel and callous treatment? The coverage was prompted by a Parliamentary report from the Work and Pensions Committee of MPs, in which they criticised Atos. Atos the powerful multinational has taken vindictive action against disabled people and carers’ websites where it is criticised, getting sites closed down which isolated people rely on for support.”
5. The website called ‘Grannie’s Last Mix’ ‘Letters from Desolation Row UK’, published this extract from a British Medical Journal (BMJ) publication, quoting a letter from Dr Greg Wood, former naval doctor and former ATOS assessor, then whistle blower, about the WCA:
https://sparaszczukster.wordpress.com/tag/general-medical-council/
‘Another Doctor Speaks Out Publicly Against Atos Work Capability Assessments’
Extract:
“PERSONAL VIEW”
“I blew the whistle on the government’s disability assessments”
“Greg Wood former naval doctor and Atos disability analyst.”
“Greg Wood went to the media with concerns about the ethics surrounding tests for fitness to work—and eligibility for benefits—that the UK government outsourced to Atos.
Actually, two whistleblowers went public before me, and several other doctors have raised concerns anonymously. I am a former general practitioner in the Royal Navy, where work related assessments are bread and butter stuff. The UK Department for Work and Pensions (DWP) devised the work capability assessment (WCA) to judge whether people who receive out of work sickness benefits could, in fact, cope with most forms of work. A more stringent test came into use in 2011, and the government made no secret of the fact that it hoped this would boost the labour market, improve people’s self esteem and personal income, and, of course, reduce government debt.
For many years the information technology and “business process outsourcing” company Atos has had a contract, now worth £100m (€116m; $155.4m) a year, to carry out several social security benefit assessments, including the WCA, for the Department for Work and Pensions. In my view this risks tension between doctors’ professional concerns on the one hand and business imperatives on the other.
The WCA had a troubled childhood. From early on, claimants and disability groups were reporting problems. They felt the assessment was a box ticking process, where medical assessors spent most of their time punching superfluous lifestyle data into the computer. And the likely outcome as they saw it? Computer says no. In fact, the test, on paper at least, isn’t too bad, though it isn’t going to win anyone a Nobel prize. But it cannot adequately take into account health conditions that fluctuate unpredictably, and it tries to include too broad a range of jobs. Driving, call handling, shelf stacking, data entry, and cleaning, for example, are all theoretically covered. And although the test is nominally a pre-employment medical test of sorts, it is really still about measuring the person’s level of disability. In early 2013 the WCA was still causing a rumpus in public, despite a series of external reviews.”
One problem that dawned on me over time was the widespread use of five ill conceived so called rules of thumb that were promulgated during the training of new assessors. On one, manual dexterity, the guidance was just plain wrong. The training said that this all boiled down to an inability to press a button, whereas the regulations allow points to be awarded when there are difficulties forming a pinch grip, holding a pen, or operating a computer. The other “rules of thumb” showed a combination of discrepancies and questionable interpretations of medical knowledge—for example, moving from one room to another at home was supposed to be equivalent to moving 200 metres. The effect was to reduce a claimant’s likelihood of entitlement to financial help. Another concern was the absence of documentary evidence, which, in my experience, occurred in about a fifth of assessments.”
(First publised by the BMJ Publishing Group Ltd in 2013)
*****I strongly recommend you read the rest of that letter on their website, and a supportive letter by Dr Glyn Phillips, GP, dated 23 August 2013.*****
K). INFORMATION ABOUT THE WCA, CRITICISM OF IT AND THE DWP – BY SUPPORT GROUPS, A TRIBUNAL UNIT AND THE MEDIA
As already mentioned and presented above, there has been endless criticism of the WCA, the DWP and ATOS Healthcare. The WCA has had a fair share of negative reporting, and this continued over the years of its use. Support groups and increasingly also media published information and critical reports on the WCA. Below is just a small sample of these:
1. ‘Rethink Mental Illness’, website publication – ‘factsheet’:
‘Work Capability Assessment’
http://www.rethink.org/living-with-mental-illness/money-issues-benefits-employment/work-capability-assessment
For downloading the PDF ‘factsheet’, try this following link:
http://www.rethink.org/resources/w/work-capability-assessment-factsheet
2. From the website ‘Birmingham Tribunal Unit’:
‘The Work Capability Assessment (WCA)’
http://www.btu.org.uk/guide-docs/44-the-work-capability-assessment-wca
3. ‘The Mirror’ reported on 04 April 2012:
‘32 die a week after failing test for new incapacity benefit’
http://blogs.mirror.co.uk/investigations/2012/04/32-die-a-week-after-failing-in.html
Extract:
“More than a thousand sickness benefit claimants died last year after being told to get a job, we can reveal.
We’ve highlighted worries about the controversial medical tests for people claiming Employment Support Allowance which are being used to slash the country’s welfare bill.
The Government has boasted that more than half of new claimants are found “fit to work” – failing to mention that over 300,000 have appealed the decision and almost 40% have won. Instead, employment minister Chris Grayling (below) says this “emphasises what a complete waste of human lives the current system has been”.”
“We’ve used the Freedom of Information Act to discover that, between January and August last year, 1,100 claimants died after they were put in the “work-related activity group”.
This group – which accounted for 21% of all claimants at the last count – get a lower rate of benefit for one year and are expected to go out and find work.
This compares to 5,300 deaths of people who were put in the “support group” – which accounts for 22% of claimants – for the most unwell, who get the full, no-strings benefit of up to £99.85 a week.
We don’t know how many people died after being found “fit to work”, the third group, as that information was “not available”.
But we have also found that 1,600 people died before their assessment had been completed.
This should take 13 weeks, while the claimant gets a reduced payment of up to £67.50 a week, but delays have led to claims the system is in “meltdown”.”
4. The Guardian, ‘Breadline Britain’, report from 20 June 2012:
‘Mental health of benefit claimants is put at risk by welfare reform’
“Work capability assessments, which identify those fit for work, are singled out for criticism by health professionals, campaigners and claimants”
http://www.theguardian.com/society/2012/jun/20/mental-health-benefit-claimants-risk
Brief extract:
“At the centre of the controversy is the work capability assessment (WSA), the test carried out in the UK by the French healthcare firm Atos that is designed to identify people on incapacity benefit who are “fit for work”. Critics say it fails to pick up complex and fluctuating conditions such as mental health. It is widely feared by vulnerable claimants – and for those who are found fit for work, it can trigger a long, stressful cycle of appeals.”
5. The Guardian reported on 16 December 2013:
“Ministers ‘ignored advice on inhumane fit-for-work tests’ “
“Welfare adviser says he wanted a delay to work capability tests but government pressed ahead with reassessments”
http://www.theguardian.com/politics/2013/dec/16/ministers-ignored-advice-fit-for-work-tests
Extract:
“A government welfare adviser has suggested thousands of ill and disabled people were subjected to “inhumane and mechanistic” fit-for-work tests after ministers ignored his advice not to push ahead immediately with plans to reassess 1.5 million claimants on incapacity benefit.
Professor Malcolm Harrington told the Guardian he believed the work capability assessment (WCA) was “not working very well” when the coalition took power in 2010, and he told ministers a big expansion of the scheme should be delayed for a year to enable the tests to be improved.
Harrington, an occupational health specialist who carried out three official reviews of the WCA between 2010 and 2012, said: “If they had changed the system to make it more humane I would suggest that some of the people who went through it would have had a less traumatic experience.”
Ministers pressed ahead with the reassessment of long-term incapacity benefit (IB) claimants in May 2011, despite Harrington’s warnings and campaigners’ concerns that the system was flawed. The test has since become politically controversial. Critics say it is crude, inaccurate, discriminates against mentally ill claimants, and causes widespread stress, anxiety and even suicidal feelings among claimants.”
6. The Guardian, 27 March 2014:
‘Atos quits £500m work capability assessment contract early’
http://www.theguardian.com/society/2014/mar/27/atos-quite-work-capability-assessment-contract-early
Extracts:
“Atos will receive no compensation and has made ‘substantial financial settlement’ to DWP for early termination of contract”
“The contract with Atos to administer millions of fit-for-work tests for sick and disabled people a year is ending early, the government has announced.
The £500m agreement to carry out work capability assessments had been due to end in August next year but following widespread public and political anger over the tests, which have been criticised by MPs and campaigners as crude and inhumane, the agreement will now end early next year.
There has been mounting evidence that hundreds of thousands of vulnerable people have been wrongly judged to be fit for work and ineligible for government support. The Department for Work and Pensions (DWP) said that the decision had been reached after “joint negotiations” with Atos. Ministers had been in private discussions with the company since the summer over the quality of its operation but if the government had terminated the contract it would have been faced with a penalty payment.
Mike Penning, the minister for disabled people, said: “The previous government appointed Atos as the sole provider for carrying out work capability assessments and since then we have carried out several independent reviews and made significant improvements to the assessment.
“Today we are announcing that we are seeking a new provider to replace Atos, with the view to increasing the number of assessments and reducing waiting times”.”
7. The Guardian, 11 June 2014:
“Work capability assessment system at ‘virtual collapse’, says judge”
http://www.theguardian.com/society/2014/jun/11/work-capability-assessment-collapse-benefits
“Robert Martin, outgoing head of benefits appeal tribunal, says DWP was too optimistic about conducting fit-to-work tests”
L). THE MAN AND MIND BEHIND THE ‘ALL WORK TEST’, THE ‘PERSONAL CAPABILITY ASSESSMENT’ – AND CONTRIBUTOR TO THE ‘WCA’
Very instrumental in the introduction of the ‘All Work Test’ as the earlier form of a work capability test used in the UK was Professor Mansel Aylward. He also helped develop the ‘Personal Capability Assessment’ used by the DWP, and had his own indirect input into the WCA, which is simply a further development of the earlier assessments. See details about Professor Mansel Aylward published on the website of ‘Public Health Wales’:
http://www.wales.nhs.uk/sitesplus/888/page/64606
Extract from the website profile:
“He is also Director of the Centre for Psychosocial and Disability Research at Cardiff University which offers a unique opportunity to extend knowledge and understanding of the psychosocial, economic and cultural factors that influence health, illness, recovery, rehabilitation and reintegration.”
“From 1996 to April 2005 he was Chief Medical Adviser, Medical Director and Chief Scientist to the UK’s Department for Work and Pensions. He was also Chief Medical Adviser and Head of Profession at the Veterans’ Agency, Ministry of Defence. From 2001 – 2009 he was The Royal Society of Medicine’s Academic Sub Dean for Wales.
He is a physician and specialist in rheumatology and rehabilitation, therapeutics and clinical pharmacology; a visiting Professor at several universities in Europe and North America and a consultant to the United States Social Security Administration and Department of Labour.
He entered the British Civil Service in 1985 and was appointed Chief Medical Adviser at the Department of Social Security in 1996 and at the Department for Work and Pensions in 2000. From 1974 to 1984 he was Chairman and Managing Director of Simbec Research Ltd, UK, and President of Simbec Inc, New Jersey USA.
He played a key role in development and evaluation of the UK’s medical assessment for incapacity (the All Work Test), and was heavily involved in developing the Personal Capability Assessment (PCA). He led the Corporate Medical Group on the UK Government’s Welfare Reform initiatives and made a major contribution in establishing the new postgraduate diploma for doctors in Disability Assessment Medicine. He was closely involved in developing the UK’s successful “Pathways to Work” initiatives and a framework for Vocational Rehabilitation.”
Re ‘Department of Social Security’ (DSS) see:
http://en.wikipedia.org/wiki/Department_of_Social_Security
Re ‘Department for Work and Pensions’ (DWP) (created 08 June 2001) see:
http://en.wikipedia.org/wiki/Department_for_Work_and_Pensions
More information about Mansel Aylward, and his somewhat suspicious, peculiar connections to the controversial health and disability insurance corporation ‘Unum’ can be found in a great Guardian article from 17 March 2008 titled ‘E pluribus Unum’, by Jonathan Rutherford:
‚E pluribus Unum’
http://www.theguardian.com/commentisfree/2008/mar/17/epluribusunum
“James Purnell’s reforms of incapacity benefit are inspired by a US company with vested interests and a murky record. Now, that’s really sick“
Extract:
“The history of the work capability assessment provides some answers. In 1994, the Tory government hired John LoCascio, second vice-president of giant US disability insurance company, Unum, to advise on reducing the numbers successfully claiming IB. He joined the “medical evaluation group”. Another key figure in the group was Mansel Aylward. They devised a stringent “all work test”. Approved doctors were trained in Unum’s approach to claims management. The rise in IB claimants came to a halt. However, it did not reduce the rising numbers of claimants with mental health problems. The gateway to benefit needed tightening up even more.
In 1999, New Labour introduced its first Welfare Reform Act. All new claimants had to attend a compulsory work focused interview. Mansel Aylward, now chief medical officer of the DWP, devised a new personal capability assessment (PCA). The emphasis was no longer on entitlement, but on what a person is capable of doing. The task of administrating the PCA was contracted out and is now run by the US corporation Atos Origin. Its computerised evaluation of claims driven by clearance time targets has resulted in significant numbers of rejected claims, particularly for those with mental illness.
Unum has built up its influence in Britain. In July 2004, it opened its £1.6m Unum Centre for Psychosocial and Disability Research at Cardiff University. The company appointed Mansel Aylward as director following his retirement from the DWP in April. The launch event was attended by Archie Kirkwood, recently appointed chair of the House of Commons select committee on work and pensions. Malcolm Wicks, minister of state in the DWP, gave a speech praising the partnership between industry and the university.
The aim of the centre is to transform the ideology of welfare and so help develop the market for Unum’s products. In 2005, the centre produced a monograph The Scientific & Conceptual Basis of Incapacity Benefits (TSO, 2005) written by Aylward and his colleague Gordon Waddell. It provides the framework for the 2006 welfare reform bill. Its methodology is the same one that informs the work of Unum.”
Own Comments re Mansel Aylward
Professor Mansel Aylward has been a leading promoter of the idea and the related theories that “work is good for health”, supposedly even “therapeutic”. His position is that sick and disabled would be better off working, in jobs on the open employment market, where they would “contribute” to society, are “active” and thus “participate” socially, and represent less of a burden to society. He claims that many health conditions and various conditions or degrees of impairment – due to injury or a more congenital nature, could be “treated” better by having the persons that have them go and work.
His now often quoted “research”, which may in some respects look convincing and even follow some scientific study principles, does though by looking at it more closely reveal, that it was mostly conducted on reading other literature, other medical, economic and social statistical reports, and drawing his conclusions out of perceived “correlations”. An apparent association or “correlation” between two sets of data, or two conditions, does though not necessarily give clear, convincing information on whether one is the cause of the other. Presentations used by Mansel Aylward, and some that support his theories, do reveal, that there is some evidence of hand-picked, selected data being used to make a certain point. The claim seems to be that “worklessness” is bad for health, is actually causing “serious harm”, and is therefore aggravating already poor health, and adding further ill health. Aylward and like minded “experts” attempt to argue that sick, injured and disabled should not be allowed to take time off to recover and rest for too long, as a return to work would be more “therapeutic”. There is only marginal acceptance that much work may also be harmful to health, and no consideration appears to be given to the fact, that is may rather be some moderate, safe physical and mental activity that has the beneficial effect on health, helping sick and disabled “recover”. That may be proper advice to give, rather than send them out to find work on an already very competitive job market, where many suffer endless stress, anxiety and many other conditions, due to so much work being insecure and precarious.
Also may the actual cause for much ill health, disease and further incapacity, that is associated with long term unemployment, rather be found in the POVERTY that comes with not being able to work and earning a good enough income to live. And in any case, the attempts by Aylward et al, to blur the lines between the severities that certain conditions may have, to then facilitate “work capability assessors” to classify more sick and impaired as “fit for work” (on the open market), these are ethically questionable approaches. They expose many with serious enough health conditions and disability to risks that they will face, by being expected to go and find work, and then maintain it, while it is often very hard for the fit and healthy people to do so. Encouraging welfare agencies, administered by governments, to also tighten benefit entitlements, and pay the affected lower benefits, is equally questionable.
Here is an earlier post that reveals and presents ample other information on Mansel Aylward, his like minded medical professional colleagues, his “research” and the on the medical and work capability assessments in the UK, to some degree now followed in New Zealand:
MEDICAL AND WORK CAPABILITY ASSESSMENTS – BASED ON THE CONTROVERSIAL BIO PSYCHO-SOCIAL MODEL
M). AYLWARD, WADDELL ET AL, ALL WORKING ON THE SAME AGENDA
Besides of Professor Mansel Aylward, there has been repeated reference to, and mention of, a number of his colleagues with similar research interests and also views. Some like Professor Gordon Waddell have also worked at the ‘Centre for Psychosocial and Disability Research’ at Cardiff, for years once “sponsored” by ‘UnumProvident’ health and disability insurance company, others have more indirect affiliations. They all share a strong, supportive position on the supposed “health benefits of work”, are very critical of the state and consequences of “worklessness”, and interpret the “biopsychosocial model” in a way, where much in the way of illness is suspected to be merely having its origin in people’s minds.
The following presents a list of interesting publications by Dr Gordon Waddell, Kim Burton, Mansel Aylward, Peter Halligan and John LoCascio (once with UNUM), that give insight into their research theories and thinking behind them.
Also perhaps see and read this post on a blog from 11 August 2006:
http://www.benefitsandwork.co.uk/news/143-us-medical-scandal-company-at-heart-of-uk-welfare-reform
Relevant publications of special interest that deserve much scrutiny and that should be treated with some scepticism re their actual scientific reliability and value:
One of the publications by Dr Gordon Waddell, who also closely worked with Dr Mansel Aylward, both based at the ‘Centre for Psychosocial and Disability Research’ at Cardiff University, is the following:
‘IS WORK GOOD FOR YOUR HEALTH AND WELLBEING?’, Gordon Waddell and A. Kim Burton, 2006:
Click to access hwwb-is-work-good-for-you.pdf
Further publications by “experts” from that Centre, all apparently designed to “blur” the conventional lines in medical science, and to “soften” the resistance that there may have been, to accept these controversial “new findings” that their research delivered, are these:
‘MODELS OF SICKNESS AND DISABILITY’, Aylward and Waddell, 2010:
Click to access Models-final-proofs2.pdf
“APPLIED TO COMMON HEALTH PROBLEMS”
‘The Scientific and Conceptual Basis of Incapacity Benefits’, G. Waddell and M. Aylward, not freely available via the internet, but available as a book, 11 Oct. 2005:
A presentation that is now used to serve as an “evidence base” for conducting radical social security reforms in relation to health and work ability assessments, is this one:
‘REALISING THE HEALTH BENEFITS OF WORK’, Mansel Aylward, presentation, RACP (Royal Australasian College of Physicians) and AFOEM, Australia and NZ, May 2010:
http://www.racp.org.nz/page/racp-faculties/australasian-faculty-of-occupational-and-environmental-medicine/realising-the-health-benefits-of-work/may-2010-video-presentation-professor-sir-mansel-aylward/
http://www.racp.org.nz/index.cfm?objectid=58C41516-C2D1-1FF1-8CC71B74C8444FB3
That presentation contains summarised selectively chosen statistics and “research findings”, all prepared to “convince” the medical professionals, their organisations and governments “Down Under” (in Australia and New Zealand)!
‘The Power of Belief’, ‘Psychosocial influences on illness, disability and medicine’; edited by Peter W. Halligan and Mansel Aylward (see short book extract), Oxford University Press:
http://ukcatalogue.oup.com/product/academic/medicine/9780198530107.do?sortby=booktitleascend
‘Malingering and illness deception’, a book by Peter Halligan, Christopher Bass and David A. Oakley, “enthusiastically” supported by Mansel Aylward, Oxford University Press, 2003*:
Click to access Malingering_and_Illness_Deception.pdf
* See and read Mansel Aylward’s own “contribution” in this publication, from page 287 on. Also John LoCascio (once with Unum) provides a “contribution” from page 301 onwards.
To understand the significance of the above publication, read ‘Vox Political’ on this:
“Found: The book that helps the government smear the sick as ‘malingers’ “, fr. 04 Aug. 2014 (posted by Mike Sivier):
http://voxpoliticalonline.com/tag/mansel-aylward/
Please also take note of this fact:
Professor Peter Halligan, who published various controversial reports on mental health, he also worked with Professor Mansel Aylward at Cardiff University in Wales, see this link:
http://psych.cf.ac.uk/contactsandpeople/academics/halligan.php
He is based at the ‘School of Psychology’, at Cardiff University in Wales, and his “School” has worked closely with Mansel Aylward’s “Centre for Psychosocial and Disability Research” based at the same university!
Here is reference to more of his “publications”, much apparently pre-occupied with “malingering” and similar behaviours:
http://orca.cf.ac.uk/58314/
‘Factitious disorders and malingering: challenges for clinical assessment and management’
See Professor Halligan’s LinkedIn profile:
http://uk.linkedin.com/pub/peter-w-halligan/21/43a/91a
It says in the summary on the front page (as on 17.01.2015):
“Dean of Interdisciplinary Studies at Cardiff University from 2006 until 2012. Professor Halligan joined the School of Psychology as Distinguished Research Professorial Fellow from Oxford University where he was a Research Fellow working in the Departments of Clinical Neurology and Experimental Psychology.
Since joining Cardiff, he has played a central role in establishing Cardiff University Brain Research Imaging Centre (CUBRIC), Wales Research and Diagnostic Positron Emission Tomography Imaging Centre (PETIC), Wales Institute of Cognitive Neuroscience (WICN), the UnumProvident Centre for Psychosocial and Disability Research, the Cardiff Cognitive Neuroscience Seminar Series, School of Psychology MindArt project, Haydn Ellis Distinguished Lecture Series and the Cardiff University Research Institutes.”
N). FORMS OF WORK CAPABILITY ASSESSMENTS IN USE IN NEW ZEALAND
1). ACC’s “Functional capacity evaluation”
So far there has in New Zealand not been a similar approach taken to use a single, points based functional assessment like the WCA in the UK. But there have been and are other kinds of assessment processes, like for instance one called ‘functional capacity evaluations’ that ACC (the Accident Compensation Corporation) uses, and which have been conducted by special service providers that ACC use:
Details re this are found on their website, see this link:
http://www.acc.co.nz/for-providers/contracts-and-performance/all-contracts/WCMZ002169
Extract from the ACC website:
“Overview”
“A task-specific functional capacity evaluation is a structured process of observing and measuring an individual performing tasks in order to identify performance deficits and safety issues, functional abilities, strengths, skills and capacity to perform specific work-related tasks.
The provider will provide assessment services to ACC claimant’s referred to the provider by a case manager.”
“Purpose of the service”
“The purpose of the task-specific functional capacity evaluation is to provide the case manager with base-line information about a claimant’s ability to reliably and safely sustain specified tasks.
The Task-specific functional capacity evaluation is an assessment undertaken by the provider in respect of a claimant’s ability to sustain specified job tasks which have been identified by the case manager in the referral.
It differs from a full functional capacity evaluation in that a provider is not required to identify suitable vocational tasks or determine broad occupational functioning abilities in respect of the claimant.”
“● A task-specific functional capacity evaluation involves four components:
• reviewing the history
• interviewing the claimant
• observing the claimant undertaking specific tasks, which have been identified in the referral from the claimant’s case manager, and
• conducting a variety of measurements while the claimant performs the specific duties/tasks of the claimant’s job.
● Task-specific functional capacity evaluations are tools to assist the development or implementation of a rehabilitation plan. They are not stand-alone assessments and must always be used in conjunction with other sources of information about the claimant. Task-specific functional capacity evaluations are useful adjuncts to the delivery of pro-active and positive case management, leading to a safe and durable return to employment, work readiness or independence in activities of daily living.
● The purpose of purchasing task-specific functional capacity evaluations is to:
• provide case managers with access to task-specific functional capacity evaluation services which are cost-effective, provided in a safe environment, and delivered in a timely manner
• support sustainable and measurable improvements in claimant’s rehabilitation and return-to-work, work readiness or independence outcomes
• match claimant capabilities to specific identified work tasks where possible
• identify the maximum level of functional performance relating to specific tasks which acts as a point from which to build rehabilitation
• assist rehabilitation planning and implementation
• enhance objectivity in the rehabilitation and return-to-work process, and
• determine the occupational functional ability of the individual claimant to perform specific occupational tasks.
● Task-specific functional capacity evaluation reports are time-limited documents reflecting what a claimant can do at a particular point in time. For most claimants, task-specific functional capacity evaluation reports older than six months should not be relied on to predict performance.
2). ACC’s ‘Initial Occupational Assessment’ and ‘Initial Medical Assessment’
Other assessments that ACC use are briefly outlined and explained in the following:
Of particular interest is an official document found via this link:
‘Vocational Medical Assessors’, ‘Operational Guidelines’, ACC, October 2008:
http://www.google.co.nz/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=0CCgQFjAC&url=http%3A%2F%2Fwww.acc.co.nz%2FPRD_EXT_CSMP%2Fidcplg%3FIdcService%3DGET_FILE%26dID%3D59660%26dDocName%3DPRD_CTRB093519%26allowInterrupt%3D1&ei=DxrHVOOjA8fd8AW2-YHgBQ&usg=AFQjCNEc9EXo28qo_xWetvSAgV-RVWmcVQ&bvm=bv.84607526,d.dGc
Note: If the above link does not work, try to download and read the attached MS Word document copy – freely available via the web:
ACC, Vocational Medical Assessors, Operational Guidelines, prd_ctrb093519, Oct. 2008
Two main types of assessments are explained in this operational guide (fr. pages 7-8):
“The Initial Assessments (IOA and IMA)
Initial Occupational Assessment (IOA)
The purpose of the IOA is to:
● Assess the client’s skills, experience and ability to undertake employment
● Identify suitable types of work for the client based on their education, experience, pre-incapacity earnings, and training
● Complete a work type detail sheet for each suitable work type.
Initial Medical Assessment (IMA)
Purpose of the IMA
The purpose of the IMA is to produce a report that ACC uses to determine the client’s vocational rehabilitation needs and direction. It requires the medical assessor to consider the types of work that have been identified in the IOA and give an opinion on whether any of the types of work are, or are likely to be, medically sustainable for the client.
The tasks on the work type detail sheet must be considered against the client’s post-injury condition, and the sheets used with the Department of Labor Physical Demand Characteristics of Work (see Appendix 7 on page 47 for an example) which defines the terms used by occupational assessors and includes the terms occasional, frequent, and constant with the percentages of the workday, as well as physical demands such as sedentary, light, medium, heavy, very heavy, and the typical energy required.
If the type of work is only likely to be sustainable, the report needs to show evidence of the rehabilitation the client will need in order to carry out the identified type(s) of work.
Assessors to list their qualifications
As experts it is important that medical assessors specify their qualifications. This should include all qualifications and experience relevant to the type of report they are writing. In terms of the information considered and the history obtained, the assessor should:
● Identify the documents sent to them by ACC or other sources, eg the client
Note:
If the assessor needs more information from ACC, they should request this from the client service staff member who referred the client to them.
● Detail who attended the assessment, eg support person or lawyer and what input they had, if any
● Identify elements of the history given by, or obtained from, other parties
● Highlight any relevant inconsistencies in the history and information.
For the examination and clinical findings, medical assessors should:
● Document the time taken for the assessment
● Document all the aspects of the examination – it is easy to omit parts of the routine clinical examination, eg pertinent normal findings
● Describe all tests performed – detail reduces the potential for later dispute.
When commenting on the types of work, medical assessors should:
● Comment on the adequacy or otherwise of information provided on the tasks involved in the types of work
● Focus on the generic aspects of the tasks
● Give reasons why a type of work is, or is not, medically sustainable – a simple list is not sufficient
● Tie the reasoning back to the examination findings, the comments and input of the client, and the information provided
● Include comments on the non-injury related conditions, and the impact or otherwise on medical sustainability or the client’s capacity to undertake work
● Provide recommendations for treatment/rehabilitation that could assist the client in sustaining a work type, eg pain management, work trial.
The IMA must determine whether the types of work identified by the IOA are, or are likely to be, medically sustainable. This is required under Part 4 section 89 of the AC Act.
See also Qualifications required for Occupational and Medical Assessors on pg 4.”
The following document, found online, from July 2013, contains some more current information on the above types of assessments:
‘Initial Medical Assessment and Vocational Independence Assessment’, ‘Guidelines for Providers’, ACC, July 2013:
Click to access prd_ctrb093519.pdf
If there are problems with the link, click this:
ACC, IMA and VIA, Guidelines, document, prd_ctrb093519, 2013
That Guide does (perhaps not that surprisingly, given the intense efforts to influence politicians, government agencies and medical professional organisations) also contain this familiar, very revealing bit of information (from page 28):
“9. Employment and Work Ability”
“Employment and Health
There have been numerous studies on the effects of employment on a person’s physical and mental well being.
In 2006 Waddell and Burton published “Is Work Good for Your Health and Well Being?”1 in which they examined the role of employment in the wellbeing of individuals, their families and their communities and also looked at the association between worklessness and poor health. They found a strong evidence base that work is generally good for physical and mental health and well-being and that worklessness was associated with poorer physical and mental health.
They also found that work could be could be therapeutic and could reverse the adverse effects of unemployment in the majority of healthy people of working age as well as for sick and disabled individuals and they should be supported and encouraged to remain in or to re-enter the work force as soon as possible because of the benefits.
We do need to remember this evidence in assessing the fitness for work and the relative enhancement of health.“
And in relation to these kinds of assessments used by ACC, there are also a number of discussion threads on ACC Forum, debating the policy and practices that ACC has in recent years been following. One highly disturbing development was what was later identified as being their commonly called “exit strategy” for long-term, complex costly claims. Here are two links to relevant discussion threads:
Re ‘Functional Capacity Evaluation’ (from 31 January 2008)
http://accforum.org/forums/index.php?/topic/6175-functional-capacity-evaluation/
Re ‘ACC Limiting Choice For Initial Medical Assessment’ (fr. 15 May 2009)
http://accforum.org/forums/index.php?/topic/7761-acc-limiting-choice-for-initial-medical-assessment/
Own Comments:
In relation to the above, it is of interest that the capacity evaluation or assessment is here only about “task specific” functions. So this is not a full functional capacity evaluation. ACC also has more comprehensive assessments, but what intrigues us here, is that a “case manager” may specify what tasks and necessary functions to perform them may need to be evaluated. This is a selective, somewhat narrowed down approach, which can leave an affected ACC claimant exposed to unreasonable presumptions and expectations by a case manager, who may try and seek any hypothetical functional ability a person has, that may be considered sufficient to expect the person to find some particular forms of work. Whether it is a realistic and reasonable expectation is another question.
The ‘Initial Medical Assessment’ (IMA) and ‘Initial Occupational Assessment’ (IOA) are more comprehensive, traditional types of assessments, gathering medical, occupational and various other information on the claimant, including past work, education, and social and environmental details. At least for the IOA the “biopsychosocial” approach for assessments is being used. ACC offer support for rehabilitation, and expect claimants to participate where reasonably possible, and efforts are made to establish types of work that a person may be able to perform, for usually at least 30 hours a week.
These assessments and evaluations may generally follow similar approaches as used in the UK, but are still rather different to the WCA itself. The ACC assessments are rather made by using existing medical and other records, and by interviewing the claimant with targeted questions, to which the answers will be noted down and analysed. It appears that all these various evaluations and assessments have over time been altered to integrate the same “findings” that are so often quoted, by Waddell, Burton and Aylward et al, from the school of thought, which insurance companies, state welfare agencies and others now prefer to rely on. The emphasis is on work ability, rather than disability, and medical factors that may in the past have given reason to categorise a person as not having capacity for work are increasingly being given less credit, as theoretically and hypothetically every person can still perform some kind of functions, to potentially “work”. The fact that the many limited functions so many people with injuries, with permanent, serious physical and mental health conditions have, do not realistically enable them to do jobs on the employment market, is treated as not relevant. Existence and availability of employment is not meant to be part of the consideration for the assessors. Through re-categorisation of existing conditions and cases, and strict assessments for future cases, an increasing number of persons are thus considered “fit for work”, and put on welfare or other support, that is at a lower rate, and which has some forms of work obligations attached to them. It is again the main agenda to simply save costs. People that suffer from frequent or permanent pain, or other symptoms, will be expected to either use condition management practices or to take medication.
A decision based on evaluations and assessments done for and by ACC can be challenged through the ACC review process. ACC claimants still have the chance to take matters further to the courts, which WINZ clients can only do if a Medical Appeal Board made a decision that was wrong in law, so a judicial review may be possible.
3). Work Ability Assessments now also conducted for Work and Income and MSD
Following the major welfare reforms with the passing of the ‘Social Security (Benefit Categories and Work Focus) Amendment Act’ (in 2013), the Ministry of Social Development (MSD) and their department Work and Income NZ (WINZ) have in early 2014 also introduced ‘Work Ability Assessments’ for clients with ill health, injuries and forms of disability. They introduced a range of newly contracted service providers that are commissioned to assess the probably more complex cases of clients for their ability to perform certain work.
There is though not one single “assessment” or “test”, nor a clearly defined set of medical criteria or guidelines that have been published, that would give any public insight into how such ‘Work Ability Assessments’ have to be conducted. There is NOTHING shedding any light on what medical or occupational standards and guidelines are used when conducting these assessments. This is hard to believe, especially since there was some serious concern about this during the Select Committee hearing process, the Readings and the passing of the ‘Social Security (Benefit Categories and Work Focus) Amendment Bill’ in 2012 to 2013. But it was only briefly reported on during the “Select Committee” process.
It appears though that the Members of Parliament and their political parties have failed to further examine and follow up this completely irresponsible and unacceptable lack of transparency and information. This serious failure may be due to the fact, that the leading opposition Labour Party did during their last term in government (until late 2008) plan to implementing similar, only slightly more moderate welfare reforms, that included new ways of “assessing” sick and disabled for their fitness for work. Smaller parties may have lacked the human and other resources, or sense of urgency, to conduct their own investigations.
The only tangible, but highly summarised, and general information that can be found on ‘Work Ability Assessments’ through an internet search is found by clicking the following links:
For general information on the ‘Work Ability Assessment’ and its purpose:
http://rnzcgp.org.nz/work-and-income-update-on-work-ability-assessment/
Click to access Work-Ability-Assessment-Questions-and-answers-3.pdf
For information on the “self assessment questionnaire” that WINZ clients now have to complete as part of their application for benefit support, and for maintaining support:
http://www.workandincome.govt.nz/online-services/myaccount/help/self-assessment.html
For a PDF file copy of the ‘self assessment questionnaire’ itself:
Click to access self-assessment-questionnaire.pdf
And again, some very general, brief information on such assessments, offered by one of the contracted service providers ‘Linkage’ (as part of the ‘Wise Group’):
http://www.linkage.co.nz/services/work-ability-assessments
For information for clients that claim ‘Jobseeker Support’ from Work and Income, re their obligations:
http://www.workandincome.govt.nz/individuals/obligations/obligations-for-getting-jobseeker-support.html
Further other important info of relevance can be found via these links:
‘Social Security (Benefit Categories and Work Focus) Amendment Act 2013’:
http://www.legislation.govt.nz/act/public/2013/0013/latest/DLM4542304.html
‘Social Security (Benefit Categories and Work Focus) Amendment Bill 2012’:
http://www.parliament.nz/en-nz/pb/legislation/bills/00DBHOH_BILL11634_1/social-security-benefit-categories-and-work-focus-amendment
All evidence and submissions presented on that Bill to Parliament:
http://www.parliament.nz/en-nz/pb/sc/documents/evidence?custom=00dbhoh_bill11634_1
The Select Committee Report on the submission hearings and discussions:
http://www.parliament.nz/en-nz/pb/sc/documents/reports/50DBSCH_SCR5776_1/social-security-benefit-categories-and-work-focus-amendment
http://www.parliament.nz/resource/en-NZ/50DBSCH_SCR5776_1/8c96283ba5105e2776ac6c6c449518a168b0a164
Further comments
During the welfare reform process, there was some mention made by some senior staff at the Ministry of Social Development, and by the then Minister for Social Development (Paula Bennett), that they looked at how ACC was working with rehabilitating injured persons that claim support from that state run corporation. So it appears that some approaches have been taken over from ACC, but we have little reliable, clear, detailed information about how such assessments are done, what processes are followed, and what guidelines they use.
This astonishing fact, that medical and now also especially work capability assessments conducted for ‘Work and Income’ and MSD seem to lack any clear set of standards and guidelines, is extremely disturbing. Despite of all its faults, the WCA in the UK has at least offered some clarity with the activities and descriptors used, although this was applied in a very negative and harmful way. No such clarity exists here in New Zealand, with the way how MSD and WINZ have their contracted providers conduct and deliver assessments on “work ability”.
At least some insightful information has been gathered and published in a range of posts that are found on this blog-site via the following links:
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part A
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part B
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part C
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part D
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part E
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part F
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Parts G and H
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME – A REVEALING FACT STUDY: PART I
O). THE CONCLUSIONS THAT NEW ZEALANDERS SHOULD DRAW FROM THE DISASTROUS WELFARE REFORMS IN THE UK, WHERE THE FLAWED AND HARSH APPROACHES HAVE NOT DELIVERED, AND WHERE THE WCA IS NOW DISCREDITED
For New Zealand and New Zealanders, the abundant information presented in this comprehensive blog contribution should make it absolutely clear, that the radical, rather draconian welfare reforms introduced under the last National Party led government here in New Zealand have been based on extremely poor “research” and “advice”. The very persons behind the development of the WCA in the UK, first and foremost Professor Mansel Aylward, also “advised” the New Zealand government (Paula Bennett as Minister), and the Ministry of Social Development on welfare reforms. Mansel Aylward and Dame Carol Black (who adopted many of Dr Aylward’s and his close colleague’s “findings” into her reports), BOTH of them “advised” the appointed, so-called ‘Health and Disability Panel’ (which was again “advising” the then Minister and New Zealand government) on the “value” of the “research” into the “health benefits of work”. A senior role within that ‘Health and Disability Panel’ was also played by Dr David Beaumont, formerly of Atos Healthcare in the UK, who has over the years provided sometimes controversial “advice” on ACC review cases, and who runs his own ‘Pathways to Work’ business here in New Zealand. He is now also the President of the AFOEM (Australasian Faculty of Occupational and Environmental Medicine), and was instrumental in having Mansel Aylward introduce his “findings” and recommendations on the “health benefits of work” into the AFOEM and with that the New Zealand and Australian medical science professions.
It was the same ideas and approaches that culminated in the introduction of the WCA in the UK, that lie behind the new approaches taken here, in the area of “work ability assessment”. Only because the widely reported harm and damage done by the even more draconian, rigorous welfare reforms and assessments in the UK alerted some media and disabled support groups here in New Zealand, could similar harm be avoided here. They raised questions which the New Zealand government appears to have become concerned about. Yet instead of completely abandoning the new approach, to look rather at what sick and disabled “can do”, than what they “cannot do”, the planned new systems and approaches were given some tweaks, and then still introduced. While in the UK there is at least some clarity with the WCA they use, in New Zealand there are NO clear standards, legally binding guidelines or “tests” in use, that determine how in particular assessments for “work ability” should be conducted. Despite of earlier promises by the Minister, there has to date not been any transparency on how doctors or other health professionals – tasked with conducting such assessments for WINZ – are supposed to do their work, and what criteria should be applied. We have a vague, “discretionary”, almost secretive case by case approach, where sick and disabled appear to be “experimented” with, to establish, whether they can do some work on the open market, or not.
As the welfare reforms in New Zealand were introduced and implemented in a rushed manner, relying on insufficiently researched and partly even blatantly biased, unsubstantiated “advice” and reports, they deserve relentless scrutiny and re-examination. The way the reforms were introduced, with a lack of sufficiently convincing, reliable and actually truly independent research and advice, this totally discredits the whole reform approach, and should lead to at least the most draconian measures being immediately reversed. The information provided in this post and research summary shows again, how a close circle of UK based “experts”, led by controversial Professor Mansel Aylward, and supported by vested interest parties, managed to use concerted efforts and effectively influenced policy formation and implementation. The background of Aylward and others, their links to UnumProvident, and their various “experts” and “research”, cast a dark shadow of doubt about the supposedly “independent” and “evidence based” advice the New Zealand Government received and accepted. While the UK and DWP are now going as far as reconsidering and reviewing the ESA and WCA, further changes here should be avoided – or actually rather be put on an immediate hold. The New Zealand Government would be well advised to wait until more reliable, objective research is done and completed, by independent researchers, before they proceed with their radical reforms to “support” or rather PRESSURE sick and disabled into questionable, potentially unsuitable employment on the competitive job market.
It may indeed be a more constructive approach, to perhaps seriously consider the introduction of a Universal Basic Income (UBI), which would be topped up by specific supplements for persons with particular extra needs, such as sick and disabled unable to work. That would abolish the requirement for those having serious health conditions and suffering incapacity to “prove” that they are “deserving” of financial support, and save an enormous amount of administrative costs. What is certainly needed is a truly science based, proven, fair, respectful and reasonable assessment regime, to have persons with health conditions and disabilities examined for work ability. It would be more constructive to design a smarter welfare system that does away with the punitive, sanction driven approach we have now, and offers sensible, constructive incentives for persons to seek suitable employment, while also introducing legal responsibilities for employers to offer work for such people. At the same time more recognition must be given to voluntary work person may do. What is also more than overdue is the introduction of a different, truly independent, competent and fair review system for those that disagree with WINZ assessment outcomes. The present appeal system offered by the ‘Social Security Act 1964’ (to be “re-written” very soon), is not meeting basic natural justice requirements, and Medical Appeal Boards must not be appointed by MSD staff anymore. A proper further appeal stage must be introduced, to allow persons to take their cases to at least a form of Tribunal, like in the UK, or to the courts as such, not just in the form of judicial review. Also would an official investigation into the use, training and management of “Designated Doctors” be appropriate, given serious questions about their “independence” in making recommendations.
The present systems in New Zealand and the UK leave much to be desired, and an overhaul of systems is certainly something we need. On this note, I close this post with thanks to the readers for their interest and shared concerns. Those that can take action, please lobby for change and make submissions on any prospective legal and other reforms we may face.
Quest For Justice
31 January 2015
(updated 05 Feb. 2015)
Here is a PDF file with the whole post as above, but perhaps better readable:
The discredited WCA in the UK, its demise and what it means for NZ, QFJ, NZSJB, 05.02.2015
APPENDIX:
Here is a list of other publications that reveal more of the truth behind the “reforms”:
MEDICAL AND WORK CAPABILITY ASSESSMENTS – BASED ON THE CONTROVERSIAL BIO PSYCHO-SOCIAL MODEL
‘The Health and Disability Panel’ and its hand-picked Members
DESIGNATED DOCTORS – USED BY WORK AND INCOME, some also used by ACC: The truth about them
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part A
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part B
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part C
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part D
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part E
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part F
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Parts G and H
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME – A REVEALING FACT STUDY: PART I
ADVICE TO WINZ BENEFICIARIES FACING MEDICAL EXAMINATIONS AND WORK ABILITY ASSESSMENTS
ADDENDUM 1: 14 FEBRUARY 2015:
‘Intolerable pressure real cause of MSD security issues’
Media release Wednesday 11 February 2015: Auckland Action Against Poverty (AAAP)
“The MSD report released yesterday deals with the consequences of a system which daily sets out to harass, belittle and punish people while failing to recognise deeper causes of security problems,” says Auckland Action Against Poverty spokesperson Sue Bradford.
“The intolerable pressure placed on staff and beneficiaries by successive welfare reforms is the true cause of security problems at Work & Income offices.
“There is no question that MSD staff deserve to be safe at work, as do all workers.
“But Government should be looking way beyond guards and risk compliance policies for genuine, longterm solutions.
“What’s needed is a wholesale change to welfare policies and practices, starting with an end to the culture of denial which sees thousands of people turned down each day for the support to which they’re entitled.
“At Auckland Action Against Poverty’s Mangere beneficiary ‘impact’ in August 2014 we helped over 500 people in three days.
“Almost all of them had been being treated with some degree of disregard and disentitlement by the department. We continue to help people in similar situations on a daily basis.
“National’s welfare reforms have focused on pushing or keeping people off benefits no matter the consequences for their physical and mental health and wellbeing.
“This has meant that many of the most vulnerable people in the country are constantly harassed as a matter of everyday practice.
“The stress is often unbearable, and it is nonsensical for the Minister Anne Tolley and John Key to pretend otherwise.
“It’s high time we had a serious review of welfare policy and practice. The current departmental culture hurts all involved. It’s way past time for a change.”
ends
Source: Scoop Media
(see the above link for the original report)
ADDENDUM 2: 28 APRIL 2015:
GROWING CONCERNS ABOUT THE INDEPENDENCE OF SCIENCE AND RESEARCH
Developments in the ever changing world of Science, where government and private enterprises appear to bring in certain expectations into what scientists research and report give rise to major concern. “Science by cheque-book” does appear to become the modern day science policy pursued by governments and private enterprises, who are keen to get the “science” and results that suit them. It comes in sneakily through the backdoor, and it has already become more of the “normal” in many overseas countries (particularly the USA and UK), and it is coming here too. There was an interesting interview on ‘Nine to Noon’ on ‘Radio NZ National’ on 10 April 2015, where Kathryn Ryan spoke with Nicola Gaston, President of the Association of Scientists. She and many of her colleagues are very worried about what is happening in the science and research departments, funded by government and/or private enterprise. We also hear more and more about public private partnership (PPPs), and it seems that is becoming the norm in science.
What it means is, we get science that is deemed to be “useful”, and less science that is truly independent. Also are scientists more often given the message, that they better hold back with their expert opinions, where it may not be so welcome.
Anyway, that is exactly what UNUM was doing, when they went into partnership with the UK government and a Department at the University of Cardiff, to fund the ‘UNUM Provident Centre for Psychosocial and Disability Research’, headed by our well known “expert” professor, Mansel Aylward. “Science on order”, some will cynically say, to serve the DWP and UK government, to achieve more welfare cuts and cost savings, by declaring more persons “fit” for some forms of work, no matter whether there would be any realistic prospects to get truly suitable, lasting and sufficiently paid jobs on the market.
Sadly they have achieved some of their goals, and even managed to bring their “science” into NZ, where former Social Development Minister Paula Bennett and Finance Minister Bill English happily welcomed supposed new “findings” with their open arms.
Here is the RNZ audio recording of the mentioned interview, found via this link:
“Scientists speak out about fears of attacks on freedom”
And here is a good summary of what UNUM was involved in in the UK, for years, playing their role in “welfare reforms”, at least giving “advice” on it:
“A Tale of two Models: Disabled People vs Unum, Atos, Government and Disability Charities :Debbie Jolly”
And while the reforms took place, UNUM did there – supposedly by “pure coincidence” – bring new insurance products onto the market, hoping that more people would insure themselves privately, as reliance on state support would in future be discourage!
These forces – such as UNUM and other vested interest parties, they are hard to beat, as they have immense funding to their avail, and a lot of “allies” all over the place. I am saddened that there is not more awareness out there, of what is really going on. But then, we know, it is not encouraged to inform oneself about it. As we can more often observe, even the media are becoming more “mindful” of what they report and what not, and they seem to be somehow complicit in spreading the propaganda for selectively conducted, interpreted and used science.
I fear Mansel Aylward et al at the ‘Centre for Psychosicial and Disability Research‘ and their work and efforts were just the beginning. What would true and genuinely independent science say about it? We many never know, as true science appears to be stifled.
THE DISCREDITED, INDEFENSIBLE WORK CAPABILITY ASSESSMENT (WCA) IN THE UK, AND WHAT ITS DEMISE MUST MEAN FOR NZ WELFARE REFORMS, PART 1
Posted by nzsocialjusticeblog2013 in Medical and Work Capability Assessments, MSD Policy and Processes on 23/01/2015
THE DISCREDITED, INDEFENSIBLE WORK CAPABILITY ASSESSMENT (WCA), RESPONSIBLE FOR ENDLESS HARASSMENT OF SICK AND DISABLED IN THE UK, AND WHAT ITS DEMISE MUST MEAN FOR NEW ZEALAND WELFARE REFORMS
Contents:
A). INTRODUCTION – THE WORK CAPABILITY ASSESSMENT (WCA)
B). THE WORK CAPABILITY ASSESSMENT HANDBOOK FOR HCPs
C). THE ASSESSMENT PROVIDER ATOS AND THE NEW PROVIDER MAXIMUS
D). INTERPRETATION OF ‘DECISION MAKER’ AT DWP
E) THE 5TH AND FINAL REVIEW OF THE WORK CAPABILITY ASSESSMENT
F). CONCLUSIONS AND COMMENTS ON THE ‘INDEPENDENT REVIEW OF THE WCA – YEAR FIVE’, AND THE ONES BEFORE
G). DR LITCHFIELD’S SUPERFICIAL IMPRESSION OF NEW ZEALAND’S WORK CAPABILITY ASSESSMENTS AND WELFARE REFORMS, AS REFERRED TO IN HIS FINAL ‘INDEPENDENT REVIEW’ OF THE WCA
H). THE WCA REVIEWER DR LITCHFIELD AND HIS LINKS TO ‘FIT FOR WORK’
I). OTHER INFORMATION ABOUT DR LITCHFIELD, HIS BACKGROUND AND WORK
J). CRITICISM OF THE WCA FROM THE UK MEDICAL PROFESSION
K). INFORMATION ABOUT THE WCA, CRITICISM OF IT AND THE DWP – BY SUPPORT GROUPS, A TRIBUNAL UNIT AND THE MEDIA
L). THE MAN AND MIND BEHIND THE ‘ALL WORK TEST’, THE ‘PERSONAL CAPABILITY ASSESSMENT’ – AND CONTRIBUTOR TO THE ‘WCA’
M). AYLWARD, WADDELL ET AL, ALL WORKING ON THE SAME AGENDA
N). FORMS OF WORK CAPABILITY ASSESSMENTS IN USE IN NEW ZEALAND
O). THE CONCLUSIONS THAT NEW ZEALANDERS SHOULD DRAW FROM THE DISASTROUS WELFARE REFORMS IN THE UK, WHERE THE FLAWED AND HARSH APPROACHES HAVE NOT DELIVERED, AND WHERE THE WCA IS NOW DISCREDITED
P). APPENDIX
A) INTRODUCTION – THE WORK CAPABILITY ASSESSMENT (WCA)
It was only weeks before Christmas last year, when in November 2014 the Department of Work and Pensions (DWP) in the United Kingdom (UK) published the fifth and last ‘Independent Review of the Work Capability Assessment’. The Reviewer who conducted his second review of the highly controversial, now widely discredited Work Capability Assessment (WCA), was Dr Paul Litchfield, who is a member of the so-called ‘Fit For Work Coalition’, and who has been Chief Medical Officer for ‘BT Group plc’ (British Telecom) for over 14 years. On his ‘LinkedIn’ profile he is quoted as having a main professional interest in occupational mental health. Dr Litchfield did also conduct the fourth review of the same WCA a year earlier. In the 5th and final review he is described as an occupational physician. Following his predecessor Professor Malcolm Harrington, he was clearly a different kind of appointment as a professional with an established “corporate” business background. Dr Litchfield’s involvement with ‘Fit For Work’ and BT drew criticism from some stake holders and in the public, but he also received more favourable consideration by other stake holders.
The WCA was introduced during 2008 following the passing of the Welfare Reform Act 2007. The functional kind of assessment was intended to help determine eligibility to the Employment Support Allowance (ESA), and it is a further development from earlier assessments that were used to establish the functional and work capability of sick and incapacitated. The WCA has received strong criticism from the time of its inception. A key role in the development and evaluation of the UK’s medical assessments was played by Professor Mansel Aylward, now Director at the so-called ‘Centre for Psychosocial and Disability Research’, a special Department at Cardiff University In Wales. He did for many years also work closely with ‘UnumProvident’, a major health and disability insurer, who did during his former role as Chief Medical Adviser at the DWP also have significant input into welfare reforms in the UK. Mansel Aylward terminated his role at the DWP in 2005, and did from already 2004 head “research” at the mentioned Centre at Cardiff, which was for years being “sponsored” by UnumProvident. It was Dr Aylward who once created the stringent so-called ‘All Work Test’. He was also heavily involved in development of the equally controversial ‘Personal Capability Assessment’ (PCA), both of which preceded the further developed WCA. It can be said, that Professor Mansel Aylward had significant input into the development of all UK work capability assessments, indirectly also into the now used WCA.
Professor Aylward did furthermore lead the Corporate Medical Group on the UK Government’s Welfare Reform initiatives, and made a major “contribution” in establishing the new postgraduate diploma for doctors in Disability Assessment Medicine. Hence he has over many years represented a strong influence on the way welfare reforms affecting sick, impaired and thus disabled persons were formulated and implemented in the UK. Mansel Aylward has over the years written and co-authored a number of publications, many based on studying and interpreting statistical and other reports, some of which have been questioned in regards to their actual medical scientific value and reliability. He has been accused of re-interpreting the so-called “biopsychosocial model” for diagnosis and treatment.
The WCA itself was introduced as a means to apply a new approach and focus in the way persons with chronic, serious health conditions, and with longer term, or permanent, physical and mental impairments, would be assessed for their capability to perform certain functional activities. With that came also the presumption that the same assessment could determine who could potentially and hypothetically perform various work related types of activities. The assessment is presented and administered by the DWP, and the Department expects the contracted assessment ‘Provider’ (until March 2015 still ‘Atos Healthcare’), to follow, use and apply it, while conducting interviews and examinations of DWP clients that are referred to them. The assessor employs approved Health Care Professionals (HCPs) who conduct the commonly called “fit for work” tests. They are expected to adhere to the guidelines set out in a ‘Revised WCA Handbook’ (the most current one appears to be Version 6, from 19 March 2013), and to act as so-called “Specialist Disability Analysts”, which is a different role to the one ordinary health care professionals perform in diagnosis and treatment.
At the initial stage a kind of assessment is conducted on paper during a “Filework” stage, usually based on a Med 3 certificate (“Fit note”) from a claimant’s general practitioner (GP). If a face to face assessment is required, clients will first be sent a self assessment form called ESA 50 (‘Limited Capability for Work Questionnaire’), or in some cases an ESA 50A form, to fill out. They may be asked to provide further medical certificates and other relevant records. “Medical” assessments under the WCA are supposed to determine whether a person has a limited capability for work, or even a limited capability for work related activity, or whether there is after all a full capability to perform work. Depending on a points score based on relevant descriptors for both physical and mental function abilities, a person will as a result of the WCA be either put into the ‘Support Group’ (for those with severe functional limitation, or with special circumstances), or into the ‘Work Related Activity Group’ (WRAG) (for those less severely incapacitated). If persons may after all be found “fit for work”, they will be put into the category of ordinary jobseekers, and will have to apply for the ‘Jobseeker’s Allowance’ (JSA). This is though not decided upon by the HCP at Atos, or the soon to follow new assessor, but by a so-called ‘Decision Maker’ (DM) at the DWP. The HCP of the assessment Provider (presently Atos) will send a functional assessment report called ESA 85 to the DM to base their decision on. Legally the HCP acts only as an “advisor”. On page 60 (see 3.1.6, second section) of the ‘Revised WCA Handbook’ (fr. 19 March 2013) it states that the Decision Makers “are not medically qualified”! On the bottom of page 60 (3.1.6.1) it also says: “the use of medical terminology should be avoided”. This raises concerns about how cases are decided on, where complex medical conditions exist.
As mentioned, the WCA is initially done on paper, and if a face to face assessment is considered necessary, the HCP will notify DWP, or rather the Jobcentre Plus Office of this, who will then make arrangements for a referral of the “claimant” to attend an examination centre. At the actual assessment a specially structured interview will be conducted, aimed at establishing the physical and mental functional capabilities – rather than the disabilities of a person. The HCP of the assessor (Atos) is instructed to first read all presented medical records and other relevant documents, and will then conduct an “effective” interview, during which she/he is expected to also “listen between the lines”. This is generally followed by a physical examination. As there are usually set time limits for the assessment, this places pressures on HCP staff. While HCPs have to record all medical conditions and a concise medical history, the whole examination or assessment is in its form only marginally “medical”. A strong focus is put on the “social and occupational history” and “the typical day” of a “customer”. The assessing HCP is also instructed to carefully “observe” the behaviour of the person they interview and examine. On page 112 of the ‘Revised WCA Handbook’ (under 3.5.1) the HCP is advised: “The HCP must have a high level of suspicion about the presence of any mental function issue and must carefully explore mental health symptoms that may be overtly “provided” by the claimant”! At least 15 points need to be scored during such a WCA for the claimant and “customer” to meet the “limited capability for work” criteria for ESA. To qualify for the Support Group a claimant must be severely incapacitated, e.g. score at least one of the highest points (15) scoring descriptors for 16 “activities” (see Appendix 1 from page 150 in the WCA Handbook). Only those meeting Support Group criteria will be exempted from work expectations. Those who only meet the criteria for “limited capability for work” will by the DM at DWP be put into the Work Related Activity Group, which usually means there are conditional work expectations.
While the WCA was initially only meant to be applied to new applicants for – and claimants of – the newly established ESA benefits, the DWP did in 2010 decide and announce that they would from 2011 onwards also re-assess virtually all existing Incapacity Benefit (IB) recipients (about 2.5 million). This made it abundantly clear that the new approach to test “work capability” was not simply a new measure for new beneficiaries, it was intended to fundamentally and generally shift the goal posts in relation to medical and work capability assessments and with that for benefit eligibility. Without doubt the aim was to reduce benefit entitlements by substantially tightening the criteria for being accepted as incapacitated to perform work. The draconian nature of the WCA (same as its predecessors) should lead to hundreds of thousands of formerly considered “disabled” to lose that status, and to be re-categorised as being “fit for work”, no matter whether there was any realistic chance of them finding real jobs, let alone perform and keep such employment on the open market.
Since its introduction the WCA has experienced a number of changes, because it was found to give insufficient considerations to mental health sufferers, because some descriptors for limitations on activities lacked sufficient clarity, because the DWP decided to review certain provisions themselves, because annual reviews suggested improvements, and because substantial public criticism and pressure (particularly from disability advocacy and support groups, but also the British Medical Association and other stakeholders) forced the government to further amend Regulations and change processes. See ‘Appendix 1’ – ‘The Support Group Descriptors’ (from page 150 onwards, in the ‘Revised WCA Handbook’ issue 2013) for details how tightly the criteria has been set for activities and descriptors in use. But all these changes, mostly brought in very reluctantly, did not abolish or replace the excessively strict and tight criteria used by way of descriptors within the WCA itself. Most changes only affected parts of the WCA processes. The DWP and UK governments insisted on continuing with using the WCA to achieve the originally stated and sought outcomes, which in hindsight though appear to provide remarkably little true and effective “assistance” for the affected, to enable them to access and maintain sustainable employment.
While the WCA is used only in the United Kingdom, the underlying changes in approaches towards medical and work capability assessments, brought about by a well known group of certain key “experts”, and suggested and supported also by a vested interests holding health and disability insurer by the name of UnumProvident, who had effective influence on political decision-makers, have over recent years also played a significant role in shaping welfare reforms in New Zealand. Some of these “experts”, such as Professor Mansel Aylward, even visited government officials, professional medical organisation leaders, and lobbied strongly for the adoption of similar approaches and processes in Australia and New Zealand. It is this evident cooperation between “advisors” in the UK and like minded “experts” and “decision makers” here in New Zealand and Australia, which should be of concern, as with the WCA having lost all credibility and justification, the “experts” that developed and promoted it, deserve to come under intense scrutiny, same as their “research” and claimed “findings”.
Reference – Wikipedia: The ‘Work Capability Assessment’ (WCA)
http://en.wikipedia.org/wiki/Work_Capability_Assessment
B). THE WORK CAPABILITY ASSESSMENT HANDBOOK FOR HCPs
The DWP has for the purpose of ‘Training and Development’ of Health Care Professionals (HCPs), that are employed or commissioned by the Provider (so far Atos Healthcare) of contracted assessment services, published a handbook. An updated version is called the ‘Revised WCA Handbook’, dated 19 March 2013. It contains important and essential guidelines for the HCPs when conducting assessments, and also shows on what information and processes the DWP Decision Makers rely and base their decisions on claimants’ benefit entitlements on. It contains the list of activities and descriptors that qualify a person for the so-called ‘Support Group’ under the ESA, where persons are exempted from work expectations. Going through the 16 “activities” reveals that the criteria to meet is set extremely tightly, it is draconian, harsh and unreasonable. The handbook is found on the internet and can be downloaded as a PDF. Look up the following links/websites for details:
‘Department for Work and Pensions’:
https://www.gov.uk/government/publications/work-capability-assessment-handbook-for-healthcare-professionals
Link to the down-loadable revised, 6th and final version of the ‘Hand Book’ for health care professionals authorised to conduct WCA assessments (from 2013):
Click to access wca-handbook.pdf
On page 11 it states the following:
“The handbook provides guidance on Employment and Support Allowance procedures and also recognises that these form the foundation of experience to progress to the generation of Evidence Based reports utilising the LiMA application. This handbook will make considerable reference to the LiMA application throughout as all ESA reports will be completed using the LiMA application except in exceptional circumstances. Much of the work carried out by Atos Healthcare, including ESA and DLA, is completed using the LIMA system. LiMA (Logic Integrated Medical Assessment) is an evidence based computer programme which allows the practitioner to document evidence gathering and supports the evaluation of data and provision of advice on levels of disability using logic based on evidence based medicine protocols. We will also use this system to provide advice for decision makers for Revised WCA assessments.“
On page 21 it says under ‘1.6 The role of the Atos Healthcare HCP’:
“In carrying out this function, ESA approved HCPs act as specialist disability analysts. The role of the disability analyst is different from the more familiar clinical role of reaching a diagnosis and arranging treatment. For the disability analyst, a precise diagnosis is of secondary importance. The primary function is to make an assessment of how a person’s day to day life is affected by disability, and to relate this to the legislative requirements.“
On page 46 under ‘3.1 The Medical Assessment’ it states:
“The medical assessment process as a whole differs in many respects from traditional history taking and examination as carried out in the general practice and hospital setting. It entails bringing together information gained from questionnaires, history, observation, medical evidence and examination in order to reach an accurate assessment of the disability of a claimant and so to provide the information and the opinion which the Decision Maker requires. It is a complex procedure, involving careful consideration of history, observed behaviour, examination, logical reasoning and justification of advice.”
The revised Handbook reveals that there have over the last few years only really been some moderate “improvements” to the ‘WCA’ since its introduction. Activities that are looked at to assess work capability are still set at very basic and restrictive levels, same as the descriptors used to tightly classify the level of incapacity. The criteria applied to assess functional capabilities or lack thereof remains extremely rigid, so that only very serious, long lasting, permanent or terminal disease, illness and physical or mental impairments will be viewed as causing sufficient degrees of disability, so that persons will be categorised as having only “limited capability for work”, or “limited capability for work related activities”.
There is still insufficient consideration for people with complex mental health conditions, or with various comorbidities (physical, mental and psychological), and especially for those with fluctuating conditions. Simply using this points system, does not allow for sufficient recognition of complex medical and psycho-social aspects that may be covered by the WCA in its only slightly altered form. It is also of concern that a face to face interview, a physical and possible other examination, in a limited time frame, will likely miss important aspects and details to consider, despite of the assessors being expected to carefully look at all documented medical records. Observation may offer some insights worth noting, but it seems irresponsible, to reduce any input by a client’s own medical practitioner and/or specialist, by using a largely functional assessment, that only has a marginal focus on the still important medical side of things. The assessments also totally ignores the realistic chances any person assessed as “fit for work” under the “limited capability for work” category may have to obtain paid employment on the open market. When “manual dexterity” is being assessed based on the question, whether a person can push a button, turn pages of a book, or to some humble degree perhaps use a mouse or even keyboard, or when a person’s “mobility” is assessed based on the question whether she/he is able to move (with or without an aid) 50, 100 or 200 metres without any interruption, or when a person may not be able to move between two seated positions without assistance, then this does in my view tell me nothing convincing, that this is a form of assessment useful to establish actual work ability on the existing employment market. But a person able to do the mentioned, or to lift a half litre carton of milk, would be considered to have a “limited capability for work”.
The same applies to questions how a person is coping with a “typical” day’s activities, which are again designed to look at whether a person can only perform extremely basic level activities to qualify for referral to the ‘Support Group’. Within a well equipped and familiar home a person may be able to cope relatively well with doing basic chores, but that will again mean very little in regards to how such a person would cope in a work place, like an office, a work-shop, at an assembly line, at a customer service point or whatsoever.
The assessment remains overly focused on claimants having to “prove” their disability, and appears to only have the aim to single out the extremely, most impaired and disabled from the perhaps more moderately impaired and disabled, in order to reduce benefit entitlements, and thus save the DWP and UK government COSTS. As those considered fit for some work will have expectations placed on them, or otherwise face lower benefits, it is the logical conclusion that the purpose behind this exercise is to reduce claims and costs, although the whole exercise has by now proved to be an abject failure. The WCA does nothing to bring about social and environmental changes, like such that employers would be expected to cooperate, same as society as a whole, to change their attitude towards, and the treatment of those with serious sickness and physical, mental and psychological disabilities. Simply replacing “sick notes” with “fit notes”, changing the official focus from “disability” to “capability” does not create more suitable jobs, better employment and pay conditions for the people that are supposed to be supported. Such are ideologically driven, cosmetic and bureaucratic changes that have not delivered the outcomes they were meant to deliver.
I recommend that readers have a thorough read of the ‘Revised Hand Book’ to get a grip of what this WCA is all about, when applied in practice! It will open the eyes of those that have little knowledge of what the WCA and applied processes actually mean and look like.
C). THE ASSESSMENT PROVIDER ATOS AND THE NEW PROVIDER MAXIMUS
For years now the DWP has worked with the contracted Provider Atos Healthcare to use and apply the WCA in assessments of new, potential and existing claimants of benefits, while gradually phasing in the ESA. Atos Healthcare has gained an appalling reputation, but while some serious failures can rightly be blamed on that Provider, it must also be accepted, that Atos has generally only been doing the job for the DWP, as the law and processes expect them to. The ultimate responsibility for major failures in applying the seriously flawed WCA should lie with the DWP and UK governments. Nevertheless, Atos deserves to be looked at and to also be criticised for delivering unconvincing, poor services that cost some persons their remaining well-being, yes their lives. It should not surprise any informed persons that Atos decided to opt out early from a long term contract with the DWP, given the total loss of faith in their delivery. The following contains essential, revealing information about Atos Healthcare, still the Provider of WCA assessment services in the UK:
ATOS Healthcare, the provider that asked for an early exit from a contract with DWP:
Their corporate website:
http://www.atoshealthcare.com/
They state rather clearly on their website:
‘ESA Claimants’
“Atos Healthcare carries out disability assessments on behalf of the Department for Work and Pensions (DWP). If you are claiming benefits as a result of a disability or injury, you may be required by the DWP to have an assessment with a qualified health care professional as part of your claim process. Atos Healthcare conducts disability assessments, using criteria set out by government, and provides the DWP with independent advice which is used by a DWP Decision Maker, along with any other information they have received, to decide on your entitlement to benefit. These benefits include: Employment Support Allowance, Disability Living Allowance, and Industrial Injuries Disablement Benefit. We also conduct assessments for Veterans UK.”
They also stress:
‘We do not decide your entitlement’
“We cannot give you advice or provide an opinion on the outcome of your claim. Our role is to carry out an assessment and provide this to the DWP in the form of a report. The DWP Decision Maker may use other information when considering your entitlement to benefit. We are not usually informed of the outcome of individual decisions and we have no targets related to decisions made.”
See: http://www.atoshealthcare.com/claimants
They also make clear:
‘What to expect’
“The assessment is not like a medical examination you may have with your GP or at a hospital which is to diagnose your condition and treat it. The assessment carried out by Atos Healthcare is focused on how you are affected by your physical and/or mental health condition in daily life; this is called a functional assessment. The healthcare professional will be interested in what you are able to do and how you do it, whether your condition varies daily, or over a period of time, and how this affects your ability to undertake the tasks of daily living.”
See: http://www.atoshealthcare.com/claimants/before_your_assessment
With Atos having sought an early termination of their contract as assessor, the DWP not long ago announced a new contract with a new Provider, who is though by many considered to be equally ill suited to deliver better outcomes, that is at least by the affected and their representative disability support groups. It is questionable, whether any other private sector Provider such as ‘MAXIMUS UK’ will perform at a higher and better level than Atos, as they will have their hands tied with a contract paying them a set amount for service delivery, out of which they will of course also wish to make a sound profit.
What we have had now for decades, is the replacement of once perceived “over bureaucratic” state service delivery agencies or departments, with corporate business service providers, who are generally providing the same services, with admittedly some variations here and there. But with a profit margin needing to be met by private, or public shareholder owned corporate businesses, there will be limits to what can be delivered, and as history has shown in many cases in Europe and elsewhere, a tendency to streamlining, rationing, using of short-cuts and other “cost effective” measures, will often also compromise the quality of services being delivered, no matter how well the intentions behind outsourcing.
See the following information on MAXIMUS UK:
MAXIMUS UK – the newly contracted service provider to work with the WCA:
https://www.maximusuk.co.uk/health-programmes/independent-health-assessments
Own concluding comments on MAXIMUS:
This US originated corporate style business does on their website unsurprisingly present many “simple” and “positive” short messages, accompanied by glossy visual imagery. They reveal only little in detail – or of substance – of what they will actually offer. They claim to provide both speedy, automated system based assessments, same as reviews, reconsiderations and appeals. This sounds bizarre, as one would expect that reviews and appeals would ultimately be handled by an independent outside body, not the provider of the assessments. This raises questions about fairness and transparency.
We get “packaged” services that require human input that will cost, and like with any outsourced providers, they will have to make their calculations how much of their resources can actually be put into each client and the staff that are supposed to “serve” and “assist” them. I do not see how such services can and will do a better, more effective and more successful job in putting sick and disabled into jobs, that in most cases already the fitter and healthier workers compete for. To bear in mind also is the fact, that the WCA will be the same test that Atos Healthcare was expected to work with, and that MAXIMUS will have to work with. Using the same “test” for “work capability” means little of substance will change, and outcomes are not likely to be much different to what Atos delivered.
The DWP will of course have set a budget under a contract that includes clear outcome and target expectations when negotiating and agreeing with MAXIMUS.
Rationing of limited, available resources for the delivery of largely computer driven “services” will be the true day to day experience the affected end-users will generally have, and they either accept the limited “help” they will actually get (mostly verbal advice and referrals), and do the rest themselves. If they cannot do this, they will be facing the same hurdles and problems that people already have without such types of services.
The question arises again, how will sick and incapacitated persons, that may under the existing WCA still be assessed as being “fit for work”, cope with the demands and stress of day to day routines that work and preparation for work naturally brings. As many – if not most – will not cope, the “achievements” may only be very temporary, and only lead to in and out of work rotations, and to further marginalisation within the precarious society we have.
The news about MAXIMUS UK taking over from Atos has generated much debate and criticism. See the following reports on the DWP taking on MAXIMUS as a new Provider for the WCA service delivery.
Criticism of MAXIMUS UK being chosen to conduct the WCA:
‘dns DISABILITY NEWS SERVICE’ report on their website (31 Oct. 2014):
‘ESA claimants set for leap ‘from frying-pan into fire’ as Maximus wins WCA contract’
http://disabilitynewsservice.com/2014/10/maximus-wins-wca-contract/
‘DPAC’ report on their website:
‚Secrets & Lies: Maximus the new leader of the inhumans?’
The ‚Black Triangle Campaign’ sent an open letter to Ian Duncan Smith, Secretary in charge of DWP (12 Nov. 2014):
D). INTERPRETATION OF ‘DECISION MAKER’ AT DWP
Under the above chapters repeated reference was made to the DWP’s “Decision Makers”. This key role is held by staff members within the Department that are not medically qualified, but appear to have an understanding of medical and work capability assessment processes. It is of some concern that they are not expected to be familiar with medical terminology, and yet will decide on claimants’ work capability and benefit entitlements. It has besides of incompetency or mistakes made by the Provider’s HCPs also been a serious issue, how DMs made wrong and inappropriate decisions, based on “recommendations” or advice from assessors. Like in New Zealand with the ‘Regional Health Advisors’, ‘Regional Disability Advisors’ and also ‘Designated Doctors’ used by Work and Income (WINZ), responsibilities are split. HCPs only serve as “advisors”, and DMs in the UK make the decisions based on their advice. There is some information available on the internet that explains the position and responsibilities of such DMs. The following links lead to what is provided by the DWP:
“Decision Maker” at DWP, Freedom of Information request 2066/2013 (fr. 02 May 2013):
Click to access FOI.2066._pub_summary_template.pdf
“Decision Maker” at DWP, relevant, important staff guides:
https://www.gov.uk/government/collections/decision-makers-guide-staff-guide
DMG Vol 8 CH 41: ESA conditions of entitlement:
DMG Vol 8 CH 42: Limited capability for work and limited capability for work-related activity:
Also of interest may be this guide for DMs:
https://www.gov.uk/government/publications/decision-makers-guide-vol-10-benefits-for-incapacity-disability-maternity-and-bereavement-staff-guide
E) THE 5TH AND FINAL REVIEW OF THE WORK CAPABILITY ASSESSMENT
As already mentioned under the ‘Introduction’ under ‘A).’ in November 2014 a final Review was completed on the WCA, and then published by the DWP. This Review followed four earlier ones, as so required under statutory law in the UK. This Review is the last one that was required under law, and while it makes further recommendations to improve the WCA, there appears to be no clear certainty that the recommendations made earlier, and the new ones, will all be fully implemented over time. To this date many earlier recommendations have only been partially implemented, or are “in progress”, some have not been accepted by DWP. This last Review mentions on page 19 (see under ‘Recommendations from previous reviews’, paras 18 + 19) that ‘Citizen Advice Scotland’ (CAS) requested or suggested that ongoing, further scrutiny of the WCA related recommendations and their implementation should follow, but there is apparently insufficient legal requirement for this.
Indeed the ‘Work and Pensions Select Committee’ of the UK House of Commons is quoted as having in 2014 called for a “fundamental redesign of the structure of ESA outcomes” (see page 2). This is a call for major changes, which need further clarification.
The 5th and Final Review of the WCA can be found on the internet. The ‘Department for Work and Pensions’ publication is titled the following, and is found via the link provided:
‘An Independent Review of the Work Capability Assessment – year five’, Dr Paul Litchfield, November 2014:
Click to access an-independent-review-of-the-wca-year5.pdf
By way of carefully selected, important extracts from the full text – I present the following:
“Foreword” (see pages 2 and 3)
“This is the fifth, and final, independent review of the Work Capability Assessment (WCA) as established by the Welfare Reform Act 2007. It is the second review that I have carried out and the three previous reviews were conducted by Professor Malcolm Harrington. The WCA is intended to distinguish between people who cannot work because of health related problems and those who are fit for some work or who could, with support, eventually return to the world of work. It has been operational since 2008 but has been subject to multiple changes in both form and interpretation, some resulting from independent review recommendations. Despite the passage of a considerable period of time, the assessment remains highly controversial and the subject of much criticism. Indeed, the Work and Pensions Select Committee has recently called for a “fundamental redesign of the structure of ESA outcomes”. 1
“Mental health has also remained an area of particular focus for me. Almost half the people going through this system have a mental health problem as their primary condition and when comorbidities are included the number rises to two thirds. This is not particularly surprising given the prevalence of mental illness in our society but the scale of the issue indicates that mental health should be front and centre in any discussion about the WCA; that has not always been the case in the past.”
“Last year I concentrated particularly on the Work-Related Activity Group (WRAG) and this year I therefore turned my attention to the other main outcome area, the Support Group. The number of people falling into this category has been rising rapidly and while at the inception of the WCA approximately 10% of new applications were assigned to the Support Group, that proportion has now risen to almost 50%.2 I have tried to understand the drivers behind this change but, necessarily in a review such as this, I have mainly identified lines of enquiry to be pursued rather than concrete answers. An area that has caused me particular concern is the large number of young people under 25 that are assigned to the Support Group, mainly as a consequence of mental health problems. I would suggest that this is an issue that goes much wider than the WCA and which has long term implications for the employability of what could become a “lost generation”.”
“In thinking about the future, I have looked at systems in some other countries. The UK must have a system which is optimal for this country but there may well be learning from other places that can be built upon. It appears to me that we have taken the WCA about as far as it can sensibly go in terms of modification and adjustment.”
Extract from the “Executive Summary” (see page 4)
“1. The Work Capability Assessment (WCA) is designed to determine eligibility for Employment and Support Allowance (ESA). It is a functional assessment based on the premise that eligibility should not be determined by the description of a person’s disability or health condition but by how their ability to function is affected, which may vary considerably between individuals. … “
“3. In conducting this Review, it has become apparent that despite these changes and some undoubted improvements, there remains an overwhelming negative perception of the WCA’s effectiveness amongst people undergoing an assessment and individuals or organisations providing support to them. “
Further extract from the Review:
“Key findings and themes from this review“
“● Evolution of the WCA – The scale and scope of the many changes to the WCA since its introduction may have had unintended consequences and further developments have occurred since the previous Independent Review. Mandatory reconsideration was introduced in 2013 and a step which might have been expected to receive a favourable reception has become associated with much negative perception. A number of factors appear to have contributed to this. The Evidence Based Review tested the WCA against a set of alternative descriptors. The methodology used was not ideal in scientific terms but it is, nevertheless, a useful piece of work that has improved the understanding of both the content of the WCA and the way in which it is applied. Overall, the published conclusion that there is no strong case for replacing the WCA with the alternatives tested is supported. There is learning about the use of semi-structured interviews and more complex issues relating to sensitivity and specificity that should be taken into account in the design of any future assessment. Overall, the sense is that the WCA has never really had time to bed down and each change serves to resurrect public interest and may serve to reinforce what are generally negative perceptions.
● Support Group – Since its introduction in 2008, there have been significant changes in outcomes for individuals going through the WCA. In 2009 63% of people first assessed were found fit for work with 26% assigned to the WRAG and a further 10% placed in the Support Group.3 By 2013 these outcomes had shifted significantly with 47% of people making a new claim entering Support Group with only 34% being found fit for work. There have been a number of drivers for this shift and some are likely to be transient but the change is remarkable and, in particular, the growing number of young people being placed in the Support Group is of concern. The main driver for the increase appears to be the use of Regulation 35 (2) (b), where an individual is considered to constitute a substantial risk of harm. This category has increased substantially in both numerical and proportionate terms – some 38% of new Support Group cases now enter on those grounds.4 Surprisingly, two thirds of these decisions are made on a papers only basis. The issues warrant further investigation to ensure that the application of the WCA is meeting the policy intent and that individuals are placed in the most appropriate group.
● Perceptions – The previous review highlighted the importance of the WCA not only being fair but also being perceived as such across a wide spectrum of opinion. Effective communication is key to improving this perception of fairness, both for people going through the WCA and for staff administering the system. This Review has sought to capture views from a wider range of stakeholders through the analysis of social media trends, as well as seeking feedback from the those members of staff within the DWP, working on ESA. Analysis of social media confirms that perceptions of the WCA remain overwhelmingly negative. The degree of negativity is perhaps telling given it is more than six years since the introduction of the WCA. One might have expected that views would have softened as people became used to the new system and saw that efforts were being made to improve it but that would seem not to be the case. Particular concerns about the level of information provided by the DWP in advance of a WCA were raised. The reliance on traditional writtencommunications works to the disadvantage of the DWP and an investment in better quality multi-media resources appears indicated.
● Decision Making + processes – Decision Makers have rightly been empowered to make decisions on eligibility for benefit but the high and rising overturn rate of Healthcare Professional recommendations was commented on last year. The overturn rate in moving people into the Support Group is not as high as it was for the Work Related Activity Group but there is again an almost total lack of movement in the opposite direction; it is implausible that in any system changes would only occur in one direction if a balanced view was being taken. When a person is awarded ESA the duration of their award is also set and this may be for as short a period as 3 months or as long as 3 years. Frequently setting short re-referral periods for those so severely incapacitated as to be allocated to the Support Group appears counter-intuitive and using the Support Group for young people with acute, and generally self-limiting, conditions may cause more harm than good.
● Groups meriting special attention – There are 1.4m people in the UK with a learning disability and only a small proportion of those of working age are in employment.5 A great deal of feedback was received concerning the barriers that individuals with a learning disability face with the WCA process. This includes difficulties with DWP standard communications, which are written in a way that many find impossible to comprehend without support. The introduction of Easy Read communications would go some way to overcoming these difficulties. The face-to-face assessment is also a particular challenge for many people with a learning disability given the common propensity to interpret questions literally, give responses that they think will please and overstate their capability. Vulnerability can be situational as well as intrinsic to the person. The Review has looked at those leaving the armed forces, those spending extended periods in hospital and those being liberated from prison. Each group faces its own barriers to interacting with the WCA process and have in common non-standard health record arrangements.
● Future of the WCA – As well as looking back, it is appropriate for the last statutory independent review to look ahead. The report by the Work and Pensions Select Committee published in July 2014 calls for a ‘fundamental redesign of the structure of ESA outcomes’.6 The Reviewer has been asked to contribute to this debate in relation to the structure of work capability assessments and their application in determining eligibility for benefits. If it is decided to undertake a fundamental redesign of the WCA, there are a number of key principles that the Department should take into account:
o Any assessment should not only be fair but be perceived as such
o There must be clarity of purpose – determining benefit eligibility and supporting employment outcomes may not be compatible objectives
o Residual elements of the medical model of disability should be eradicated in favour of a biopsychosocial model
o Departmental staff should be at the heart of the assessment and should drive information requirements
o Any revised assessment should exploit information already provided to the DWP, rather than duplicating effort and incurring unnecessary expense
o Decision Makers and HCPs should see a representative range of cases and have appropriate training in the capability impact of common conditions”
Further information contained in the Fifth Review:
The Reviewer also reflects on and summarises past changes that were made upon earlier Reviews, which are referred to and described in the 5th Review. He was for the ‘Fourth Independent Review’ assisted by an appointed ‘Independent Scrutiny Group’, which provided “oversight”, “challenge” and “support” to Dr Litchfield. That group was appointed by the Secretary of State for the DWP (see page 12 of the Review). Of the 49 recommendations that resulted from the reviews in years 1 to 3 under Professor Harrington, the Fourth Independent Review found that the DWP had only accepted 35 of those in full and ten “in principle”. Of the ones fully accepted only 29 recommendations had been fully implemented, 3 partially implemented and 3 were in progress. Of the ones accepted “in principle” 5 appeared to have been fully implemented, 2 partially implemented and 3 were in progress. 37 further recommendations were made in the Fourth Independent Review (see page 18).
Details on the implementation of previous recommendations can be found from page 19 on, under the heading ‘Recommendations from years one to three’, and from page 20 onwards under the heading ‘Recommendations from year four’. It shows that a fair number of recommendations have not been fully implemented, some going back to year 2 and 3 of the Independent Reviews. In para 27 it says re year four recommendations: “There are also a number of recommendations where DWP has demonstrated encouraging progress, though they cannot yet be considered fully implemented.” Under para 30 the Reviewer even states: “There are some recommendations where progress appears to have stalled, or it appears that DWP will not be implementing them as originally envisaged.”
On pages 21 and 22 to 25 the Fifth Review describes how a newly introduced “mandatory reconsideration process” appears to have significantly reduced appeals against DWP decisions on ESA, based on WCAs. It is unclear whether such appeals have simply been deferred, and there are evident new problems with that process itself. It has been described as taking too long and causing stress on the clients seeking reconsiderations of decisions. Also was there substantial criticism that the ESA payments are not continued during the process, forcing people to apply for JSA (see page 25 – 26). An ‘Evidence Based Review’ recommended by the former Reviewer Professor Harrington presented rather mixed results (pages 26 to 29). The DWP put out a response to the Evidence Based Review findings in March 2014, and it is quoted in the Review with:
“DWP will explore practical improvements to the assessment process in light of the EBR findings, in particular the feasibility of healthcare professionals using prompts from a semi-structured topic guide for WCA discussions. DWP will also explore the scope to further review healthcare professional training and guidance on considering and recording fluctuation during assessment discussions without placing undue burden on claimants. On the whole, the EBR results do not suggest that changes to the descriptors would improve the effectiveness of the WCA.” (page 30).
That does in short mean nothing much more than a bit more “tinkering” around the edges of the WCA process. The Reviewer makes 7 further recommendations for possible improvements of the WCA, particularly in regards to considerations by policy officials and operational staff prior to further material changes, in regards to mandatory reconsiderations, to better communication, and better use of feedback to improve quality in decision making, and also in regards to work more on developing semi-structured interviews (see pages 31 and 32 of the Review for details).
Under Chapter 3, and from page 33 on, the Reviewer reports specifically on the ‘Support Group’ and how there has since late 2013 been a marked trend of persons being placed into the ‘Support Group’, following DWP decisions upon a WCA. Under para 8 on page 34 the Review states: “There have been significant changes in outcomes following a WCA since its implementation. In 2009 63% of people were found fit for work with 26% being assigned to the WRAG and a further 10% to the Support Group.23 The WRAG outcome has been the most stable with a small reduction to 18% in 2013. However, the proportion of people found fit for work has dropped significantly to 34% and that for the Support Group has increased markedly to 47%. Allocation to the Support Group is now the most likely outcome of the WCA for new claims by a considerable margin.”
It is presumed that a spike in the Support Group clientele may be due to DWP processing a backlog of applications for ESA and necessary WCAs. The Reviewer expresses concern over the noticeable increase of new applicants or claimants to ESA aged 16 to 24 and also 25+ being assigned to the Support Group. He notes with further insight into the statistics that there is a greater number of persons being placed in the ‘Support Group’ under Regulation 35 (2) (b ), where there is deemed to be a substantial risk to the mental or physical health of any person (see para 13, page 36). A high number of these individuals were analysed as suffering a mental health condition, some of whom were considered at risk of suicide and self harm. The Reviewer appears to consider that the shift since 2009 reflects a change in which manner the Regulation is being used by HCPs, Decision Makers and/or the Tribunal Service. Only 34 percent of the people, who were placed in the ‘Support Group’ as a result of “Mental and Physical risk”, were so, following a face to face assessment. The Reviewer asks how about two thirds could be assessed as “not fit for work” on that basis through an assessment on the papers. Under ‘Young People’ (page 35) the Reviewer expresses his extreme concern about the fact that 49 percent of young people making a claim for ESA were in 2013 being put into the ‘Support Group’, with no work expectations.
One may wonder about the true independence of Dr Litchfield as Reviewer when looking at his remarks there, as the WCA had for years been considered as too unreliable, as giving insufficient consideration to mental health conditions and as being very rigid, harsh, unfair, yes inappropriate. Here he is defending the WCA, and questioning a change in assessment outcomes, which may actually be due to the realisation by the claimants’ own GPs, and then the assessment Provider’s HCPs and consequently DWP’s DMs, that there are more deserving cases of persons that should be placed into the ‘Support Group’, given their incapacity due to complex, fluctuating and vulnerability causing mental health conditions.
On page 41 of the Review he makes the following recommendation in this regards:
“The Reviewer therefore recommends that:
The Department investigates the substantial increase in the proportion of Support Group outcomes as a matter of urgency to determine whether the WCA is being applied correctly.
o In particular, the use of Regulation 35 (2) (b ) should be subject to close scrutiny with a particular focus on decisions made on a papers only basis.
o The drivers for the high rate of young people (16-24) being assigned to the Support Group should be examined not only to ensure that benefit decisions are correct but also to help provide the type of support that will avoid the creation of a “lost generation”.”
Then Dr Litchfiled does under Chapter 4 report on the “Perceptions” of the WCA, which have remained rather negative. The review gathered information on the perceptions of the WCA in the wider public and also amongst DWP staff, besides of those by people being assessed and those representing them. Strangely he talks about “effective communication” as a “key to improving the perception of fairness”. This suggests it is in his view not so much the WCA and processes followed, it is poor “communication” that is to blame for negative public perception. DWP communications to claimants were being examined as part of the Review. Also were “social media” content on Twitter and Facebook looked at. The analysis of “social media” for perception of the WCA was overwhelmingly negative. DWP staff were generally satisfied with staff training, but a “perceived need for additional follow-up support” was evident, and “differing levels of confidence in the effectiveness of the assessment” was noted between staff groups. Hence the Reviewer appears to recommend the bundling of necessary future changes, same as the review of mechanisms in place to monitor levels of understanding amongst staff, and improved advance communication (also from the Provider) about the WCA, and that the DWP work with the new Provider to improve the range, quality and content of online resources relating to the WCA.
Chapter 5 covers the decision making within DWP on ESA applications and WCA assessments. Dr Litchfield reflects on some issues with re-referral periods for the claimants in the Support Group and the Work Related Activity Group. The Reviewer generally supports the use of varying re-referral periods, of different duration, but appears to recommend a more careful and appropriate approach, which does not always seem to be applied. He suggests DWP should review some of their practice in this area.
Under Chapter 6 Dr Litchfield looks more closely at groups meriting special attention, such as persons suffering mental health conditions, and in particular those with learning disabilities. He describes difficulties these groups experience, including a few other special groups of persons, when facing a WCA, starting with the completing of the ESA 50 questionnaire, but also with presenting needed medical and other documentation, and how to deal with a face to face interview with a HCP of the Provider (to this date still Atos). 8 recommendations for improvements are made on pages 64 to 65.
I will not bother covering Chapter 7, which covers special aspects that apply to how the WCA is being used in Northern Ireland. Of more concern to me is Chapter 8 about “The future direction of the Work Capability Assessment”. Under “The changing landscape” the Reviewer raises concerns about whether the WCA is, as a replacement of the earlier ‘Personal Capability Assessment’, while using a more functional assessment of capability, still fit for the remainder of this new century. He describes the changes in the nature of work, the disappearance of many physically demanding jobs and the new technologies offering different forms of employment. Also mentioned is the change in the workforce over recent decades, partly due to changes in demographics. He mentions public health improvements, but also the rise in the incidence of mental health conditions.
Dr Litchfield considers that “the current assessment model, though founded on capability rather than diagnosis, retains a strong medical flavour.” “Modern thinking favours a biopsychosocial model of disability, which considers not just capability but also other factors such as skills and readiness for the labour market”, he writes. He continues on page 80: “Integrating these various factors is more complex than a simple capability assessment, such as the WCA, but the power of modern computing facilitates the integration of multiple sources of data quickly and cheaply. The WCA is often viewed as being machine driven but the assessment is one that could easily be conducted using pencil and paper. We would therefore seem to have the worst of both worlds at the moment with a perception of automation without the benefits of comprehensive data analysis to inform decisions.” The Reviewer expresses concerns about the lack of information sharing.
Then he goes over to look at international experiences and practices, which may be of some interest, but his comments should perhaps also be of concern, given the apparently very one sided, rather superficial understanding, especially in regards to what has been done and is happening here in New Zealand. While there are many similarities in the way sick and incapacitated on benefits are being assessed and now “supported” into potential employment or training, there are indeed also some fundamental differences between the systemic approaches now used here in New Zealand, and those presently used in the UK. The following is a further extract from the Review, starting from page 81:
“International approaches” (see pages 81 – 82)
“15. The demographic issues outlined above are by no means unique to the UK. The Review has therefore examined the approach taken in some other parts of the world to support people of working age who have incapacitating health conditions and disabilities.
16. There have been a number of common developments in recent years. Many countries have moved from systems based on health conditions and disabilities to ones that assess functional capability. In parallel there has been a shift from the use of people’s own doctors as the “gatekeepers” to benefit eligibility and towards the use of independent assessors. Some countries have separated the issues of benefit eligibility from work capability and gear assessment of the latter towards the definition of adjustments that might allow reintegration into the workforce. It is beyond the scope of a review such as this to provide a detailed analysis of different social security systems but the Reviewer found developments in the Netherlands, Denmark, Australia and New Zealand of particular interest.
17. In the Netherlands, most people’s capacity for work is assessed by an insurance company using a ‘Functional Capability Checklist’, which is based on an individual’s capability and not health condition or disability. The examining doctor assesses the probable duration of incapacity as well as the likelihood of recovery. If the individual is found to have some prospect of employment, an ergonomist will review appropriate jobs and make a calculation of salaries to determine if loss of earnings is significant enough to award benefit, on either a temporary or permanent basis.
18. Denmark has a system which maps closest to a pure biopsychosocial model of disability. Eligibility for benefit is assessed against a ‘Resource Profile’ which consists of 12 components addressing an individual’s education and work history, cognitive and mental fitness and social circumstance. Only one component of the profile is health-related. This principle of taking a wider range of factors than simply functional capability is already applied in Northern Ireland through the Job Readiness Indicator tool referred to in Chapter 7. Systems such as this have been considered overly complex in the past but developments in information technology make their operational use practicable.
19. Australia has had some success with focussing its assessment on identifying and overcoming barriers to work in its dual role as assessing eligibility for benefit and referring individuals to service providers. An assessment of functional impairment is made against ‘Impairment Tables’ and individuals point-scored against a range of descriptors that include physical exertion, stamina, mental health function and functioning related to substance abuse. The assessment is then used to identify barriers to work an individual may face and refer for appropriate support.
20. New Zealand has taken a fundamental approach which the Reviewer was able to explore in some detail with the assistance of the New Zealand Government. Reforms have recently been introduced with the aim of simplifying the benefits system. There are many similarities with the UK system but also some key differences. The new system amalgamates sickness benefit and several other benefits with unemployment benefit as Jobseeker Support. A self-assessment focusses on the type of work an individual could undertake currently or in the future and the support they might require to do so. There are differing levels of obligation (analogous to UK conditionality) but benefit payments do not differ. A case management approach is taken to assist people into work with specific additional support for those with mental health problems. Independent capability assessments may be undertaken but are sited at the very end of the process, if required at all, and relatively few had been undertaken at the time of writing.
21. The New Zealand reforms are at an early stage of implementation and it is not yet possible to determine their impact. However, the approach of uncoupling levels of benefit eligibility from work capability and focussing on overcoming barriers to employment has appeal and merits further exploration.”
„Principles for any redesign“
“22. The WCA has now been the subject of five independent reviews as well as, perhaps unprecedented, external scrutiny. The Independent Reviews have concluded that broadly it fulfils its remit but that it is far from perfect and there has been considerable scope for improvement.
23. The EBR has examined the current descriptors against an alternative set and has highlighted a number of strengths and some weaknesses. Substantial changes have been made to the assessment since its introduction and those may, at least in part, explain the significant shift in outcomes described in Chapter 3; it is unclear whether those outcomes now reflect policy intent. There have been many changes in the world of work, an evolution of thinking in relation to work related benefits and a step change in the capacity to handle complex information since the WCA was designed. The Work and Pensions Select Committee has called for “a fundamental redesign” and it is questionable whether that can be achieved by further tailoring of the current tool.
24. It may therefore be that policy makers will choose to initiate a comprehensive overhaul of the system. If so, it would seem prudent to look more widely than the WCA and to revisit the basic assumptions for ESA so that any assessment is properly aligned to what is required of it. Consideration should then be given to whether an assessment of functional capability is the most appropriate means of determining eligibility for benefit or whether that decision is better uncoupled from activity geared to helping disadvantaged people finding employment. The Reviewer would counsel in the strongest terms that sufficient time and suitable expertise be allocated to design, develop and test any new assessment as part of drawing on the learning from the WCA.
25. If it is decided to undertake a fundamental redesign of the WCA, the Reviewer would recommend that there are a number of key principles that the Department should take into account.
26. As has been stated in this review and its predecessor, there is an overriding requirement for any assessment not only to be fair but to be perceived as such. That perception must be broadly shared by those experiencing the process, those administering it and society at large. There remains widespread disquiet about the WCA and the way that any replacement is designed will be critical to building trust in it. The Department should therefore give careful consideration to how this would be best achieved but transparency and consultation will be critical.”*
* Please read the original Review to see what Dr Litchfield recommends for that case from para 27 onwards!
Also note the following revealing bit of information in Annex 4 to the Review:
“Annex 4: Acknowledgments:”
Extract:
“1. Although this has been my second review of the Work Capability Assessment (WCA), I have had a great deal more to learn about its application and I am most grateful to all those who have graciously given their time to help me.”
“10. I would also like to thank officials at the Ministry of Social Development in New Zealand – particularly Sacha O’Dea, Anne Hawker and Dr David Bratt – for providing invaluable insight into the challenges they are facing and the reforms being made into how incapacity for work is assessed. “
****Please read the rest of the full Review and recommendations by Dr Litchfield!****
F). CONCLUSIONS AND COMMENTS ON THE ‘INDEPENDENT REVIEW OF THE WCA – YEAR FIVE’, AND THE ONES BEFORE
On having read most of the Review, it is clear that since the introduction of the WCA there had been a number of changes proposed and in a fair few cases also made. The Fifth Review has in Chapter 2, ‘The development of the Work Capability Assessment since 2008’ from page 18 to 22 covered previous recommendations that resulted from earlier Reviews, and looked at which had been accepted by the DWP in full, and which in principle. I looked at the ones which have been partially implemented, which have in some cases been fully implemented, and which have not been implemented. Some are described as being “in progress”; some recommendations have been superseded by recommendations in Review Four. It appears that some recommendations have to this date not been implemented.
Further information re each outstanding recommendation that was made under Reviews in years one to three can be found under Annex 2 (see page 90), listing them individually, and showing the progress or lack thereof. Annex 3 lists recommendations from the Review in year four (see pages 94 to 103), which have only been partly implemented, some not at all.
Detailed new recommendations have been made in the Review for year five, and they are individually listed as bullet points on the following pages:
Chapter 2, Page 31 to 32: 7 recommendations
Chapter 3, Page 41: 1 recommendation (with 2 sub bullet points, listed as 3 in Annex 1)
Chapter 4, Page 47: 5 recommendations
Chapter 5, Page 54 to 55: 5 recommendations
Chapter 6, Page 64 to 65: 8 recommendations
Chapter 7, Page 77: 5 recommendations
Chapter 8, Page 84 to 85: 6 recommendations (not listed in Annex 1 as suggested for WCA redesign)
Total recommendations counted: 37
As some of these appear to have been broken down differently, they show as only 33 total recommendations, as they are listed in Annex 1 (see from page 86 onwards).
Going through the various recommendations listed in the Annexes 2 and 3, it shows, that most of the still outstanding ones, and of the recent (year four) ones listed there, have either only been partially implemented, or are still “in progress”. Only a few have been fully implemented, and some (including important ones) have not been implemented at all. It appears the DWP and also the UK government have been dragging their feet when challenged with further improving the WCA. The valid question though is and remains: Can the WCA be sufficiently improved, to be applied reliably in all cases, and at the same time be perceived as a fair way of assessing sick and disabled persons?
My personal view is, and it appears that it is the view of a majority of the affected, and many in the UK public, that it cannot. The WCA is not fit for purpose, has never been so, and the changes or “improvements” that may have been made, do even in the eyes of the Reviewer now question, whether the WCA and the process in place do still fulfil the “policy intent”.
Having a functional assessment like the WCA, that is as restrictive and harsh, by using selected activities and associated descriptors, that only classify sick and disabled, when they can barely move or mobilise (with even reasonable aids), when they cannot lift half a litre of milk, and when they can only change from one seated position to another with another person’s support, to be considered “not fit for work”, is draconian, inhumane and mean. Considering persons “fit for work”, when they can lift a half a litre of milk, when they can walk a minimal distance, when they can push a phone button, when they can do other very basic activities, and extremely simple tasks, is completely unreasonable, as there are virtually NO realistic employment opportunities for individuals that can just do that, or a little bit more.
All changes and support will not enable most such persons categorised as “fit for work” to compete with the considered “more healthy” and “able bodied” on the open job market. And still today the WCA is not fit for appropriately assessing many with mental health conditions, that fluctuate, and that may not appear as severe as expected, as many with such supposedly “moderate” or “common mental health conditions” will also not realistically be able to cope with the expectations that come with jobs being offered on the competitive job-market. The very fact that the WCA had to be changed as often as it has been, or rather the process while using it, shows that it is seriously flawed, and does not stand up to scrutiny.
It is essential that a different method of assessing sick and disabled for work capability is introduced and followed, which also still considers medical aspects, as it is impossible to exclude medical diagnosis and treatment from the process. A functional assessment must continue to give sufficient consideration to the assessed person’s GP’s reports and recommendations, which should be combined with other considerations, and the assessed person must be given sufficient respect and allowed fair and reasonable input into the process, as otherwise the “social” will be missing from the “biopsychosocial model” now so often propagated. Also without employers, and society as a whole, recognising and accepting their responsibilities towards the incapacitated, the disabled and long term ill, there will be little improvement in the situation of the persons that are supposed to be “supported”.
The whole history of the disastrous results of the WCA being applied over the years only reveals, that the “policy intent” is primarily a cost saving exercise, and little else, and even that has failed, given the large percentages and numbers of appeals and now also sought mandatory reconsiderations of decisions. Therefore the WCA must be abolished and replaced. If the WCA and associated measures would truly be designed to “support” people with disabilities into sustainable work, they would very different to the ones in use in the UK. It is true that many disabled would like to work, but many could have tried so under previous kinds of benefits and systems. The actual major problem is not the persons’ lack of motivation or alleged “malingering” or exaggerating conditions, the major problem and challenges are the lack of suitable jobs, the lack of supportive, accommodating employers, the lack of work environments where disabled people can work safely and be respected and appreciated, for the work they realistically can do. With a highly competitive job market, designed to favour the fittest of the fittest, mentally and physically, with less security and often insufficient pay to cover basic living expenses of workers, it may rather be the environmental conditions that prevail, that make it impossible for most disabled to find work, that is those that actually can do regular, somehow more or less demanding work.
Also is it absurd to overly marginalise the medical aspects when conducting assessments, as it happens to be physical and mental health conditions, besides of injury and disability due to loss of limbs and such, that are generally the cause for impaired function and incapacity. No matter what redefining of language, reformulated approaches and restructuring of work capability assessment tests may happen, to achieve certain outcomes. There will be physical, mental, psychological, and environmental and other limitations to what can be achieved. It would be more respectful and humane to simply accept that various persons need benefit support, and additional support, to perhaps find suitable employment, and it may make more sense to provide real incentives to the individuals concerned, and employers and other stake holders, to provide the conditions that can bring better outcomes. The WCA simply puts pressures on the weakest in society, by re-categorising them and laying endless new expectations onto them, which will be enforced through sanctions. This is not a productive and constructive approach to get disadvantaged persons into employment.
Governments that use such assessments as the WCA, and similar measures to pressure sick and disabled to try and find work, and to do all to keep them, and to even force them to stay in jobs when they are not well, are dishonest. Such measures are NOT about “helping” people, they are about shifting the goal posts and reducing welfare dependence and costs with whatever ruthless means. The drive and “policy intent” is simply to reset the criteria, to tighten it and nothing much else, whether there realistically are the jobs necessary or not.
The peculiar references to assessment practices and processes in New Zealand that are made in the Review will be addressed further below, as they do at least partly appear to be based on some misinformation. The limited number of references and comments Dr Litchfield has made in his review imply, that he only got the New Zealand Government’s and the Ministry of Social Development’s Principal Health and Disability Advisors’ position presented to him. It appears he did not bother to consult disabled persons’ support groups, beneficiary advocates and possibly also not members of the New Zealand medical professions on the welfare reforms. I will discuss this matter in the following chapter(s).
G). DR LITCHFIELD’S SUPERFICIAL IMPRESSION OF NEW ZEALAND’S WORK CAPABILITY ASSESSMENTS AND WELFARE REFORMS, AS REFERRED TO IN HIS FINAL ‘INDEPENDENT REVIEW’ OF THE WCA:
It appears to be rather selectively presented and accepted information and advice that the last Reviewer of the WCA in the UK, Dr Litchfield, obtained from the New Zealand Government and senior Advisors of the Ministry of Social Development. There are some apparent inaccuracies, there is a lack of other important, relevant information not mentioned, and there appears to be a degree of misunderstanding of the way reforms in New Zealand have been introduced and are being applied. Firstly we need to look again at the Review:
See again the extracts from ‘Chapter 8’ on page 82 of the Independent Review:
20. New Zealand has taken a fundamental approach which the Reviewer was able to explore in some detail with the assistance of the New Zealand Government. Reforms have recently been introduced with the aim of simplifying the benefits system. There are many similarities with the UK system but also some key differences. The new system amalgamates sickness benefit and several other benefits with unemployment benefit as Jobseeker Support. A self-assessment focusses on the type of work an individual could undertake currently or in the future and the support they might require to do so. There are differing levels of obligation (analogous to UK conditionality) but benefit payments do not differ. A case management approach is taken to assist people into work with specific additional support for those with mental health problems. Independent capability assessments may be undertaken but are sited at the very end of the process, if required at all, and relatively few had been undertaken at the time of writing.
21. The New Zealand reforms are at an early stage of implementation and it is not yet possible to determine their impact. However, the approach of uncoupling levels of benefit eligibility from work capability and focussing on overcoming barriers to employment has appeal and merits further exploration.”
Also please reflect on this additional information presented at the end of the Review:
“Annex 4: Acknowledgments:”
Extract:
“1. Although
this has been my second review of the Work Capability Assessment (WCA), I have had a great deal more to learn about its application and I am most grateful to all those who have graciously given their time to help me.”
“10. I would also like to thank officials at the Ministry of Social Development in New Zealand – particularly Sacha O’Dea, Anne Hawker and Dr David Bratt – for providing invaluable insight into the challenges they are facing and the reforms being made into how incapacity for work is assessed. “
Dr Litchfield’s apparent failure to fully understand the New Zealand system
It always requires a bit of gathering of essential, relevant information, and analysis and study to fully understand systems used and applied in other countries. Even with having done such research and study, which often relies on certain official records and documents, and position statements and other data presented by public officials that are consulted, there is always a risk of only seeing part of the whole picture, and of misunderstanding complexities and details. I fear this has happened with “advice” the Independent Reviewer of the WCA received from New Zealand.
The question arises, what “invaluable insight” did our well known Principal Health Advisor Dr David Bratt, together with the usually hardly ever heard from, or noticed Principal Disability Advisor Ann Hawker, give to the Reviewer, Dr Litchfield?
What we have so far had delivered in New Zealand does not seem anything much more convincing and “ground breaking”, as the “reforms” here (from 2012/13) were largely taking over very similar, if not identical approaches, that were adopted with “reforms” previously introduced in the UK. One major, noticeable difference may be Dr David Bratt’s extra emphasis, that the benefit is supposedly as harmful as “a debilitating drug” (see his many presentations stating that, and also selectively quoting Drs Aylward and Waddell and others, who set the agenda and tone for reforms in the UK):
‘Ready, Steady, Crook – Are we killing our patients with kindness?’ (see pages 13, 20, 21, 35)
Click to access C1%201515%20Bratt-Hawker.pdf
Special features or aspects of the NZ system, in comparison to the UK system
In order to look at the more serious aspects of what differences there are between the UK and New Zealand, I can list the following:
1. “Simplifying the benefits system”
It is correct that there has been a “simplifying” of the benefit system in New Zealand, but while there has been a merger of the former ‘Sickness Benefit’ with the former ‘Unemployment Benefit’, and also the inclusion of some former ‘Domestic Purpose Benefit’ recipients into the new ‘Jobseeker Support’ category, there are still other types of benefits. One important benefit that exists for those severely and permanently (for at least 2 year) incapacitated is the ‘Supported Living Payment’ benefit category, formerly known as the ‘Invalid’s Benefit’. Dr Litchfield may know about it, but failed to make any mention of this, while it is actually a rather important benefit that is so far still being maintained here in New Zealand. It also includes persons that may need to care for an incapacitated person, but such “carers” may themselves need to face “work ability” and other assessments. Sick and disabled with medical conditions, injuries and incapacities of a less severe or temporary kind are included in the ‘Jobseeker Support’ category, but can be deferred from work test obligations, similar as the ‘Work Related Activity Group’ under the ESA in the UK may be. But in New Zealand, ALL persons on benefits can be assessed for work ability, or expected to attend work preparation measures, at any time, if so considered as being justified.
Now there may be the temptation to compare the Supported Living Payment benefit with the ‘Support Group’ under the ESA in the UK. That would not be quite appropriate, as there is still a somewhat less restrictive, not as rigid and harsh way applied when assessing persons that may be entitled to this benefit. Also have many persons that received this benefit since before the last major welfare reforms, that took effect mid July 2013, remained on it, and only in some cases been re-assessed. While the general approach by the Ministry of Social Development’s (MSD’s) department called Work and Income (WINZ), the agency comparable to the DWP in the UK, is to now rather look at what people can do, than what they cannot, there is NO one clear set of guidelines or “descriptors” for activities, that is used for assessing sick and disabled here. This means, there is at least not a publicly known “test”, for how the individual persons that may qualify for this benefit are being assessed. The ‘Supported Living Payment’ recipients are likely to face more re-assessments and re-examinations over time, but there has to date not been a clear, general move to have all recipients re-assessed for their eligibility to that support.
2. Assessment regime and criteria
As mentioned above, the truly fundamental difference between the way work capability is being assessed in the UK, compared to here in New Zealand, is the one, that we do in New Zealand not have one clearly defined, structured, point scoring assessment such as the WCA. There is NO such one official document, no clear “test” at all being used. Despite of initial promises we have since the reforms were implemented since mid 2013 had NO clear communications at all from WINZ, the Ministry of Social Development (MSD) or the government, about what the exact criteria is, for assessing persons for their work capability. This is a very serious matter, as it leaves a huge degree of discretion to assessors that MSD and WINZ may use, and also to the “Advisors” and “Case Managers” making final recommendations and decisions on a case by case basis. It was the unreasonable degree and level of discretions the Chief Executive (and his/her staff) now have, which was during the submission process to the ‘Social Security (Benefit Categories and Work Focus) Amendment Bill 2012’ (presented in September 2012) raised as a major concern by the ‘Legislative Advisory Committee’. See their submission via this link:
Click to access Submission-on-Social-Security-Benefit-Categories-and-Work-Focus-Amendment-Bill.pdf
This means there is a lack of clarity and transparency in the whole assessment process!
3. Benefit entitlements or eligibility
What Dr Litchfield has made no mention of is the fact, that it is simply not quite correct to say, that there is no difference between benefit payments. It is not true, as the ‘Supported Living Payment’ is actually set at a somewhat higher rate than the ‘Jobseeker Support’ benefit payment. Already before the reforms were the ‘Sickness Benefit’ (paid for only short to medium term sick and disabled, not able to do full time work) and the ‘Unemployment Benefit’ set at the same rather low levels. So there has been no change between the beneficiaries now receiving ‘Jobseeker Support’, whether fully healthy and able to look for work, or those temporarily “deferred” from work and training expectations, due to health and disability. It is also not correct that benefit eligibility is “uncoupled” from work ability and resulting expectations. There are severe sanctions in place if a benefit claimant fails to fulfil obligations, which include working with contracted service providers. So if a work capability is established, there will sooner or later be an expectation that a client will look for work or at least do training, which may happen through contracted employment referral and training service providers. If a person refuses to cooperate, sanctions will be enforced, such as halving or fully stopping benefit payments. That can hardly be seen as “uncoupling” benefit receipt from work ability. Perhaps have a look at the information found via the following link:
http://www.workandincome.govt.nz/individuals/brochures/benefit-rates-april-2014.html
4. Requests for review and appeals on medical grounds
Also important to note is the fact, that in New Zealand, a WINZ client has the right to seek a review of any decision made, also where she/he may feel to have been assessed as “fit for work” by a “case manager”, on health grounds. The request for review will go to WINZ, and usually to the branch office manager. This may to some degree resemble the now in the UK used “mandatory reconsideration” process. Once another look was taken and a decision reviewed, the client can, if still unhappy with a decision following such a request, under certain circumstances appeal to a ‘Medical Appeal Board’, now in the statute called ‘Medical Board’ (MAB). This appeal body is rather different to the “Tribunal Services” in the UK, there coming under the ‘Courts and Tribunals Judiciary’. An appeal against a decision made by WINZ on health grounds, or relating to decisions on ability to work, can only go to the mentioned Board, which is actually not part of the judiciary at all. It is a panel of doctors and other appointed health and disability professionals, mostly so-called “Designated Doctors”, appointed by a “Coordinator” employed by the MSD itself. They take a fresh look at a person’s health and disability situation, and review decisions made. Only if a decision made by such a rather less “independent” Board gives reason to be challenged under law, is there the difficult to pursue option of filing for judicial review before a High Court here. A beneficiary may qualify for legal aid for such a civil proceeding, but first a lawyer needs to be found, who can also present a statement that proves a likelihood of success of such proceeding, as otherwise legal aid will not be granted at all. As legal aid nowadays hardly covers a legal representative’s costs, the chance of finding one is extremely difficult for a start. And if a proceeding commences, then MSD will most likely offer a “settlement” out of court, and deal with the case in discretion. The MABs are known to have appointed panel members that tend to raise questions about independence and objectivity. See these links:
http://www.workandincome.govt.nz/individuals/brochures/a-guide-to-medical-appeals-board-hearings.html ; http://www.legislation.govt.nz/act/public/1964/0136/latest/DLM5487423.html
5. Decisions on benefit entitlement based on work ability and medical conditions
While in the UK a ‘Decision Maker’ at the DWP makes a final decision about an applicant’s eligibility to claim the ESA, in New Zealand it is the ordinary ‘Case Manager’ at WINZ, who makes the formal and legal decision, under the authority of the Chief Executive. Case Managers decide who may be entitled to claim a benefit on health or other grounds. Like in the UK they mostly rely on “recommendations” made by here employed ‘Regional Health Advisors’ (RHAs) and ‘Regional Disability Advisors’ (RDAs), based at Regional Offices of MSD and WINZ, when making their decisions. But they do not make decisions based directly on reports and recommendations from an outside examiner, e.g. a ‘Designated Doctor’ or another contracted assessor. There is sometimes an involvement of ‘Designated Doctors’, who are actually “mentored”, “trained” and “supervised” by the Principal Health Advisor (PHA), Dr David Bratt, and their recommendations will go directly to the RHA or RDA. The latter will though mostly accept these and pass their further recommendation on to the Case Manager handling an application or re-assessment of a WINZ client. ‘Designated Doctors’ are supposed to act “independently” when examining and assessing sick and disabled clients, but they are commissioned and paid by MSD. There is now also the occasional use of separate, contracted ‘Work Ability Assessors’ (mostly physiotherapists, occupational therapists, and some psychologists), but their recommendations and reports appear to also go through the hands of RHAs and RDAs, who may in some cases consult with the PHA and PDA for further advice or clarifications. Hence in New Zealand there is not one major outsourced assessor, and there are also these internal Work and Income NZ Health and Disability “Advisors” who Case Managers receive “recommendations” from!
6. Case management approach and supposed “specific additional support”
Dr Litchfield does in his report comment: “A case management approach is taken to assist people into work with specific additional support for those with mental health problems.” This claim is misleading, and only in part correct. So far this additional support, especially in the case of those with mental health problems, consists primarily only of “more intense case management”, and very little else. There is now a use of some newly contracted outside service providers to deliver “mental health employment services”, but they are facing difficult challenges, as they are paid set fees to deliver expected outcomes, which may not be achievable, if referred clients are not capable to live up to certain expectations. There are similar services for single parents on benefits, and some others with other health problems or “barriers”. But the emphasis is on achieving a set percentage of successful, at least temporarily lasting job referrals, with a very limited focus on “additional support” of a medical or psychological kind. If a provider does not achieve enough placements of clients into lasting employment, they will not get paid enough fees, which may mean they become economically nonviable. That means there is also significant pressure to “perform”, which can lead to clients facing risks of being referred into jobs, where they may not actually be well placed and hence cannot cope. These services are still in the testing phase, and there has been very little, even conflicting information, on their level of success. Lack of transparency and of evaluation information on the welfare reforms here are a major issue!
7. Overcoming barriers to employment
Like in the UK, the “barriers” that may be established and looked at here in New Zealand are usually only the ones that the affected sick and disabled beneficiary may face her-/himself, due her/his illness and incapacity. There is NO real expectation that can be put into employers, and that can be enforced, for them to fulfill a social duty to employ sick and disabled, and only limited incentives (if any) appear to be given. So the expectations and pressures are primarily placed on the client in receipt of a benefit, with a limited capability to work. Obligations can include seeking and participating in certain treatments, to attend support groups, to attend “courses” aimed at helping people apply for jobs, and to conduct job search efforts, and the likes. Again, if such obligations are not met, there will be severe sanctions that will be enforced, which is one way of “motivating” people through fear, not really by giving positive incentives to them to look at and use any supposed “capabilities”. If found “fit” for some work then there will be expectations, and case managers at WINZ are also expected to meet targets when working on placing such persons into employment. In an interview with Radio New Zealand National, MSDs ‘Director of Welfare Reform’ commented that they would usually not even tell employers of “barriers” their sick and disable clients may have, e.g. mental health conditions, which appears like they are taking irresponsible risks:
http://www.radionz.co.nz/national/programmes/ninetonoon/audio/2592666/winz-expands-scheme-to-support-unemployed-with-illness-issues
8. Work Capability Assessments by different types of service providers
Unlike in the UK, New Zealand’s ‘Work and Income’ department does not use one major contracted assessment provider, like Atos Healthcare or MAXIMUS. Instead they have for many years maintained a pool of ‘Designated Doctors’ to provide second opinions, where there may have been a perceived need for such. Either a client’s own GP may have suggested a second opinion may be recommended, or WINZ Case Managers themselves may (usually after consulting with a RHA or RDA) decide to have a client with health conditions and/or disability referred for an extra examination by such a doctor, who is generally a GP. Since 2008 MSD have been actively “training” these doctors, officially only to “better understand” the WINZ systems and their “needs”, but there is anecdotal evidence that this reached levels of trying to influence such doctors. Dr Bratt and his RHAs and RDAs have been expressing certain expectations, which show for instance in the “presentations” Dr Bratt has used. Nowadays WINZ have around 300 “Designated Doctors”, and once they had many more. As the involvement of such additional assessors was still perceived as not meeting WINZ’s expectations in some cases, they have as part of recent welfare reforms (since 2013) started to contract a range of smaller, regional ‘Work Ability Assessment’ providers, who are commissioned on a case by case basis. They employ mostly physiotherapists, occupational therapists, some nurses, also the odd psychologist, and may now be asked to also provide an “independent” assessment for work capability for certain individual clients. But like ‘Designated Doctors’ they are bound by contracts with MSD, which again contain specific expectations, which are though not publicly available, as such information may be deemed “commercially sensitive”, and will therefore not be made available under the ‘Official Information Act’. As this is also a very new measure, there is still little or no information available on how they work. A number of links to other posts of interest may shine light on what they are about:
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part A
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part B
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part C
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part D
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part E
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Part F
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME: A REVEALING FACT STUDY – Parts G and H
WORK ABILITY ASSESSMENTS DONE FOR WORK AND INCOME – A REVEALING FACT STUDY: PART I
9. The lack of accountability assessors have in New Zealand
Few people outside of New Zealand will know of the complex legal framework that covers the registration and accountability of health practitioners in this country. One needs to understand the relevant provisions in the ‘Health Practitioners
Competence Assurance Act 2003’, the ‘Health and Disability Commissioner Act 1994’, possibly also the ‘Health Information Privacy Code 1994’ and various other legal provisions, and how they are all inter-connected, and basically only leave the end consumer of health and disability services the option to lay complaints about any misconduct and failures by practitioners with the Health and Disability Commissioner. That Commissioner issues, oversees and “enforces” the so-called ‘Code of Health and Disability Services Consumers’ Rights’, but that means rather little here, as again, that Commissioner has very much discretion to take certain actions, or to (very often) take no action. Hence when last year the Office of the Commissioner received over 1,700 complaints, only just over a hundred were “formally” investigated. Even if misconduct is found and established, then the actions the Commissioner takes is usually limited to warnings or advice on how to remedy failures by conducting further training and such. The Commissioner does also only deal with complaints about practitioners acting as third party assessors, if face to face assessments and other conditions applied. And even then, the Commissioner will usually not bother getting involved, and simply refer the complainant to address any issues with the agency that commissioned the practitioner to do the assessment, e.g. WINZ or ACC. The New Zealand specific ‘Accident Compensation Act 2001’ also has special, unique provisions, and it provides for compensation to be paid even to persons suffering from medical misadventure, while the practitioners responsible cannot be sued for damages here. So assessors will usually have little to be concerned about, as they can make poor, flawed recommendations and will mostly face no serious sanctions or major consequences.
Health and Disability Commissioner: Can we trust in HDC independence?
See the relevant legislation found under these links:
http://www.legislation.govt.nz/act/public/2003/0048/latest/DLM203312.html
http://www.legislation.govt.nz/act/public/1994/0088/latest/DLM333584.html
http://www.legislation.govt.nz/act/public/2001/0049/latest/DLM99494.html
10. The special role by the Accident Compensation Corporation (ACC)
There is here also a separation between responsibilities state agencies have for supporting sick, injured and various types of disabled persons. While persons with congenital diseases, with illness and disability that did not result from an accident of any sort are reliant on the Ministry of Social Development’s WINZ department, those that suffer accidents tend to be looked after by ACC. The no fault accident compensation scheme in place here provides compensation payments for lost income (at a certain percentage), and does also offer some additional support, same as in particular cases clear expectations, for claimants to participate in rehabilitation. ACC use assessments that may fulfil a similar purpose as ones such as the PCA and now WCA used in the UK, but they do so with a slightly different approach and agenda. Some examples of what assessments they use will be presented further below in this post. There are though some claimants, who may be re-categorised by ACC as having a limited capability to work, and then get “exited” by that corporation to apply for WINZ benefits, should they fail to find and access employment that may be expected of them.
Conclusions
From the various points mentioned above, it becomes clear, that there are some significant differences between the systems and approaches used in the UK and in New Zealand. One very major difference between the way sick and disabled on benefits, or applying for benefit, are now being assessed here in New Zealand, when compared to the UK, is the absence of a formal, clearly structured, points-based “Work Capability Assessment”! Despite of all its flaws and deficiencies, there is one only advantage it has: It provides a basic level of clarity by listing certain activities and associated descriptors to conduct assessments. It may lack clarity in other respects, but from a legal point if view, it is “clear” enough to be challenged at Tribunal. Also very different is the way appeals can be made, and when looking at the somewhat favourable references and comments the WCA Reviewer Dr Litchfield has made in his report, this should raise alarm bells in the UK. It appears that the Reviewer considers it worthwhile to perhaps take up similar approaches to the ones used in New Zealand, and integrate these into the UK system. That would mean, having assessments that are lacking transparency and clarity, and that are also difficult to challenge, as it would be more problematic to appeal decisions made by Decision Makers. The UK would fare better with not following the New Zealand model or system, given it is so vague, and that it leaves so much in respect of diagnosis, assessing and decision making up to extremely unreasonable degrees of discretion, all very much left to the very agency that commissions the work capability assessments and pays benefits. It appears that there is already a level of formal and also less formal exchange of information in this area happening between the New Zealand Government and UK authorities and agencies.
Perhaps it is exactly the stated aspects of the New Zealand system that has impressed the UK Reviewer so much, as that approach is so open to flagrant abuse through using endless “discretion”? At the same time it bears a rather low risk of adverse consequences for the assessors and decision makers; because it deals with each case by case, so legal requests for reviews and appeals have little chances to overturn decisions against clearly set standards or established systems and processes, which do not exist here. Yes, decisions can be reviewed and changed, but that will only be done under discretion, case by case. The excessive amount of discretion that exists here in New Zealand, which the ‘Legislative Advisory Committee’ lamented in their submission on the ‘Social Security (Benefit Categories and Work Focus) Amendment Bill’ in 2012, seems to be appealing to the Reviewer, and will probably also do so to the DWP. It may be for the very “murkiness” of the assessment and decision making processes in place here now, that there have been few if any public challenges and discussions about the legality and fairness of it all. And if WINZ or their “Advisors” get it seriously wrong, they can always use the same discretion, to review cases internally, thus limiting costs, and avoiding litigation AND the setting of legal precedents that may curtail their powers and freedoms to act for future cases.
PLEASE ALSO READ THE SEPARATE PART 2 OF THIS COMPREHENSIVE POST:
Also feel free to download this PDF file with a better readable copy of the whole post:
The discredited WCA in the UK, its demise and what it means for NZ, QFJ, NZSJB, 05.02.2015
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