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Review of the Act and Code 1999

TABLE OF CONTENTS

A. Framework of Act and Code

B. THE ACT


1.0 Preliminary Provisions

2.0 PART I Health and Disability Commissioner

3.0 PART II Code of Health and Disability Services Consumers' Rights

4.0 PART III Health and Disability Services Consumer Advocacy Service

5.0 PART IV Investigation of Complaints

6.0 PART V Miscellaneous Provisions

C. THE CODE

1.0 Overview

2.0 Recommendations for change

Appendix A - Proposed Provisions in the Act
Appendix B - Proposed Code of Health and Disability Services Consumers' Rights
Appendix C - SCHEDULE OF CONSULTATION MEETINGS
Appendix D - SUBMISSION RESPONSE FORM

 

 

A. Framework of Act and Code

The Health and Disability Commissioner Act was passed in 1994. Its purpose is defined as being:

"To promote and protect the rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights."

The Act established an independent Commissioner, provided for the drafting of a Code of Health and Disability Services Consumers' Rights, and set up a process for dealing with complaints about alleged breaches of these rights, including the establishment of a nation-wide consumer advocacy service.

The legislation is deliberately consumer-focused. It recognises the imbalance of knowledge and power which exists between consumers and providers, and seeks to achieve a greater level of partnership between these groups to the ultimate end of improving service quality.

The Act is therefore a unique attempt to balance two diverse aims. On the one hand, it provides a mechanism for resolving suitable complaints directly with the service provider. On the other, it seeks to ensure quality services for the public and proper accountability of health professionals and others by providing for an independent investigation of complaints by the Commissioner. The Commissioner is charged with ensuring that the purpose of the Act is met in its entirety and that this balance of interests is appropriately managed.

One of the Commissioner's first tasks on appointment was to assess public expectation of service providers and define these in terms of a set of legally enforceable rights. The Act demanded that these rights emerge from public consultation. Accordingly, over a period of nine months in 1995, I consulted with and invited submissions from representatives of consumers, providers and specified statutory agencies to receive as wide a range of views as possible when preparing a draft Code. This was tabled in Parliament in October 1995.

The Code of Health and Disability Services Consumers' Rights took effect as a regulation under the Act from 1 July 1996. It applies to any person or organisation providing, or holding themselves out as providing, a health care service to the public. This includes all registered health professionals and hospitals, whether public or private, and extends to alternative health providers. The definition of a disability services provider is even wider, as it is not limited to those providing services to the public. The Code therefore brings a degree of accountability to practitioners who are beyond the historic medical mainstream - naturopaths, homeopaths, acupuncturists, rest homes, etc. - professions which have been exposed to little regulation in the past. It has particular advantages for vulnerable consumers, such as the elderly and disability service consumers, who previously had little protection.

There are 10 rights in the Code. They are:

1. the right to be treated with respect

2. the right to freedom from discrimination, coercion, harassment, and exploitation

3. the right to dignity and independence

4. the right to services of an appropriate standard

5. the right to effective communication

6. the right to be fully informed

7. the right to make an informed choice and give informed consent

8. the right to support

9. rights in respect of teaching or research

10. the right to complain.

The Code brings together in one place many of the obligations historically imposed on providers by legal, professional and ethical standards. It also imposes some new obligations. It assists providers to gain direct feedback from consumers on the services they provide and therefore operates as a valuable quality assurance mechanism. It also encourages an environment that enables both consumer and provider to communicate openly, honestly and effectively, and is based on the fundamental premise of respect.

1.0 PRELIMINARY PROVISIONS

1.1 Overview

Sections 1 - 7 of the Act set out some preliminary provisions dealing with such matters as definitions and the purpose of the Act. These provisions establish the conceptual basis which underpins the rest of the Act.

1.2 Definitions - ss2-4

Section 2 sets out a series of definitions which are used to give a standard meaning to words or phrases that occur frequently in the Act. Section 2 is not the only place in the Act where terms are defined. Other definitions appear in section 3 ("Health care provider") and section 4 ("Registered health professional").

A good set of definitions is important for the effective operation of the Act. The definitions assist in interpreting and applying all other provisions in the Act as well as those in the Code. The definitions of 'provider', 'consumer' and 'services', for instance, largely determine the application of the Act and Code.

While most of the current definitions have worked satisfactorily, there are a few matters which could be improved on as follows:

1.2.1 Consumer

"Health consumer" includes any person on or in respect of whom any healthcare procedure is carried out.

"Disability services consumer" means any person with a disability that-

(a) Reduces that person's ability to function independently; and

(b) Means that the person is likely to need support for an indefinite period.

Single definition of 'consumer'

The Act does not define consumers generically, rather it separately defines a health consumer and a disability services consumer.

Although it is necessary to clearly identify these two consumer groups, and separate definitions can be useful when referring to the specific needs of each group as well as the ambit of the Commissioner's jurisdiction, it is cumbersome referring to both health and disability services consumers to describe the Act's application. There is an advantage in having the single term 'consumer' refer to both consumer groups. It would not only aid ease of reference but would emphasise that the Act applies to both sets of consumers. It would also be consistent with the approach taken to the definition of 'consumer' in the Code and the generic approach taken to the definition of 'services' in the Act.

I therefore recommend that the term 'consumer' be included in section 2. This would be in addition to the existing definitions and would be defined to mean "any health consumer or disability services consumer". Where appropriate, the separate references in the Act to health consumers and disability services consumers should be replaced by a single reference to 'consumers'.

1.2.2 Provider

'Health care provider' has the meaning given to it by section 3 of the Act.

Definition of "Health Care Provider"- In this Act, unless the context otherwise requires, the term "health care provider" means-

(a) A licensee of a licensed hospital within the meaning of the Hospitals Act 1957:

(b) A controlling authority of a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992:

(c) A licensee of an aged persons' home licensed under regulations for the time being in force pursuant to section 120A of the Health Act 1956:

(d) A controlling authority of any home or premise in which 5 or more persons who are under the age of 17 years are receiving care:

(e) The Children's Health Camps Board:

(f) A Camp Committee under the Children's Health Camps Act 1972:

(g) A manager of a certified institution within the meaning of the Alcoholism and Drug Addiction Act 1966:

(h) Any registered health professional:

(i) Any person who provides ambulance services to the public:

(j) Any person employed by the School Dental Service to carry on the practice of dentistry:

(k) Any other person who provides, or holds himself or herself or itself out as providing, health services to the public or to any section of the public, whether or not any charge is made for the services.

"Disability services provider" means any person who provides, or holds himself or herself or itself out as providing, disability services.

Single definition of 'provider'

The Act does not define providers generically, rather it separately defines a health care provider and a disability services provider.

For similar reasons to those discussed above under the definition of 'consumer', I recommend that the term 'provider' be included in section 2. This would be in addition to the existing definitions and would be defined to mean "any health care provider or disability services provider". Where appropriate, the separate references in the Act to health care providers and disability services providers should be replaced by a single reference to 'providers'.

Breadth of coverage

The definitions of 'health care provider' and 'disability services provider' are very wide. For example, the definition of 'health care provider' includes all registered health professionals, hospitals and other health institutions, and extends to alternative health care providers. Providers are covered whether or not a charge is made for services. The definition of a 'disability services provider' is even wider, as it is not limited to those providing services to the public.

The Act therefore brings accountability to organisations and providers such as naturopaths, homeopaths, acupuncturists, rest homes, etc. - with little historic exposure to regulation. This is of particular advantage to vulnerable consumers, such as the elderly and disability service consumers, who previously had little protection.

Although the Act's wide coverage imposes workload and management pressures on the Commissioner, I consider this coverage is appropriate and necessary. Its advantages outweigh its disadvantages. The Act is a piece of consumer legislation and must focus on the needs of consumers. It is important that the Commissioner has the ability to look at the whole range of services provided to consumers, including non-traditional services. The legislation must ensure not only that each service is provided to the requisite standard, but that all services are properly co-ordinated and that consumers do not fall through any gaps in terms of accountability for the services they receive.

It has been suggested that for clarity's sake it would be helpful to include a schedule listing those providers covered by the Act, in particular those public sector agencies covered. I do not agree with this suggestion. The range of providers subject to the Act is extensive and a schedule of this nature could result in omissions and reduce the Act's effectiveness. Further, certain agencies are covered for some functions but not others, for example where the agency has a funding role in addition to providing services (e.g. ACC). In such situations a schedule would not aid clarity.

1.2.3 Services

"Disability services" includes goods, services, and facilities-

(a) Provided to people with disabilities for their care or support or to promote their independence; or

(b) Provided for purposes related or incidental to the care or support of people with disabilities or to the promotion of the independence of such people:

"Health services"

(a) Means

(i) Services to promote health:

(ii) Services to protect health:

(iii) Services to prevent disease or ill-health:

(iv) Treatment services:

(v) Nursing services:

(vi) Rehabilitative services:

(vii) Diagnostic services; and

(b) Includes

(i) Psychotherapy and counselling services:

(ii) Contraception services and advice:

(iii) Fertility services:

(iv) Sterilisation services:

"Health care procedure" means any health treatment, health examination, health teaching, or health research administered to or carried out on or in respect of any person by any health care provider; and includes any provision of health services to any person by any health care provider.

'Health service' as encompassing definition

The definition of 'health service' is extensive. For example, it covers services to promote health, to protect health and to prevent disease or ill-health and includes public health services. However, under the Act it is the term 'health care procedure' which is the all encompassing definition, as this includes the provision of 'health services' to any person, and provides the link to the definition of a health consumer.

The statutory definitions seem inconsistent with the everyday use of these phrases. The term 'health services' is commonly understood to be the more expansive of the two terms.

I therefore recommend that the definitions of 'health services' and 'health care procedure' be combined, or redefined, so that 'health services' incorporates the definition of 'health care procedure'. This approach more readily accords with the common usage of these terms and would be consistent with the definitions in the Code. It is also consistent with the generic reference to 'services' in section 2 of the Act, which is defined to mean 'health services and disability services or both'.

As a consequence of this amendment the definition of 'health consumer' would also have to be changed, as this is currently defined as any person "on or in respect of whom any health care procedure is carried out". This phrase should be replaced with "to whom health services are provided".

Teaching and research

The definition of 'disability services' is consistent with the definition in the Health and Disability Services Act 1993. However, unlike the definition of 'health care procedure', it does not include disability teaching or research. Although the Code gives rights to disability services consumers in respect of teaching and research, as these are matters of particular importance to such consumers (s20(2)), I am of the view that it should be made explicit in the Act that those providing teaching or research in respect of such consumers are subject to the Act's provisions. There is no valid reason why health and disability services consumers should be treated differently in this respect.

I therefore recommend that the definition of 'disability services' explicitly refer to teaching and research in respect of people with disabilities.

1.2.4 Teaching

The term 'teaching' is an important term which occurs in the Act. Although it is defined in the Code, there is no equivalent definition in the Act.

I recommend that the term 'teaching' be defined in the Act to give it a standard meaning consistent with the Code. That is, that teaching be defined to include the training of providers.

1.2.5 Informed consent

The current definition of informed consent refers only to consent in relation to a 'health consumer' on or in respect of whom a 'health care procedure' is carried out. For the reasons discussed below at 3.3.1, I recommend that this definition refer to both health and disability services consumers.

1.3 Purpose of Act- s6

Section 6 sets out the purpose of the Act:

The purpose of this Act is to promote and protect the rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy and efficient resolution of complaints relating to infringements of those rights.

I do not consider there is a need for any change to this provision, but in light of some initial misunderstanding about its meaning the following discussion may be useful.

1.3.1 Promotion and protection

This purpose reflects an inherent balance in the Act between the right of individuals to resolve complaints to their own satisfaction, and the public's right to quality services and accountable service providers. The complaints resolution process of the Act is therefore simply a means to the wider end of promoting and protecting consumer rights. Viewed in this context, reference to 'resolution' of complaints may mean a variety of things, including resolution by means of a Commissioner's report or recommendation, or resolution through the various tribunals empowered to hear matters which have been the subject of an investigation.

Consistent with this wider purpose, the Commissioner's functions extend beyond the consideration of individual matters that appear to breach the Code. They also include a wider consideration of the rights of all consumers to services that comply with the Code. This is made clear in section 35(2), which gives the Commissioner the ability to investigate actions on the Commissioner's own initiative, and in the definition of 'action' to include any policy or practice, as well as other various sections of the Act. The High Court decision of Nicholls v Health and Disability Commissioner [1997] NZAR 351 has clarified beyond any doubt that the Commissioner's ability to look at systems issues is an integral part of fulfilling the Act's purpose of promoting and protecting consumer rights.

1.3.2 Fair, simple, speedy and efficient resolution

With regard to the Commissioner's complaints jurisdiction, the stated aim of the Act is to facilitate the "fair, simple, speedy and efficient" resolution of complaints. This relates to the overall scheme of complaint resolution under the Act, as well as to the handling of individual complaints. The ability of advocates to resolve complaints without the more formal investigation procedures being called into play is therefore an important means by which this aim is achieved.

There has been some concern expressed about the length of time taken for investigations under the Act. This is a valid concern and I am continually looking at ways to reduce the time taken to process complaints. However, it must be recognised that 'speedy' investigations are just one part of the Act's aim. A balance must always be struck between simple, speedy resolution, and achieving a fair result. The Act seeks to ensure the latter by setting out a number of procedural safeguards for those being investigated and this is entirely appropriate. The results of an investigation can often be of considerable significance for those concerned. It is unrealistic to suppose that a fair result will always be a speedy result. This balance must also weigh up the individual's desire for a speedy outcome with the wider competency/public safety issues which may arise, requiring more widespread investigation.

Results are also subject to the limits of available funding. Since the investigation provisions of the Act became fully operational in July 1996 until the end of January 1999, I have received 2,666 complaints. My experience is that as time goes on complaints have become more serious and more complex. Given current levels of funding, this means that inevitable delays will arise. The aim of "speedy" resolution and the requirement in section 43 for investigations to be conducted with "due expedition" must be read in this context.

Other agencies, such as the Privacy Commissioner, have dealt with similar constraints by introducing a waiting list before complaints are dealt with, sometimes in excess of 12 months. However, a waiting list is not an appropriate solution under this Act, given its wider concern to protect the public from unsafe services. Consequently, either expectations of a speedy resolution must be more realistic, or funding must be increased.

I recognise there are limits to the resources available for agencies such as the Health and Disability Commissioner. In light of this, to cope with demand, I have included in this document many recommendations which will give the Commissioner increased flexibility to enable the Act's purpose to be achieved in a realistic and effective way.

While maintaining a fair process, the Commissioner must be enabled to fulfil a 'watchdog' role unhindered by unnecessary bureaucratic constraints. The Commissioner must not become yet another auditor in the sector, with all the cost and formality this involves, but must be given sufficient flexibility to ensure the substantial powers of investigation are used as effectively as possible and on essential matters only.

1.4 Reference to Treaty of Waitangi - s6A

In light of the importance of the Act and Code as a means of improving the quality of services, the Act should include recognition of the Treaty of Waitangi as New Zealand's founding document. This is consistent with my recommendation that the Code include specific reference to the Treaty, and the Crown's objective to increase the health status of Maori. I therefore recommend the Act be amended to include an obligation that all persons exercising functions and powers under it shall have regard to the principles of the Treaty of Waitangi.

This recommendation is consistent with a number of recent pieces of legislation, including the Resource Management Act 1991, the Crown Minerals Act 1991, the Foreshore and Seabed Endowment Reverting Act 1991 and the Hazardous Substances and New Organisms Act 1996.

1.5 Summary of recommendations

I recommend that

Act 1

the term 'consumer' be defined to mean any health consumer or disability services consumer

Act 2

the term 'provider' be defined to mean any health care provider or disability services provider

Act 3

the term 'disability services' explicitly refer to teaching and research in respect of people with disabilities

Act 4

the terms 'health services' and 'health care procedures' be combined/redefined so that 'health services' incorporates the definition of 'health care procedure'

Act 5

the term 'health consumer' be defined to include any person to whom health services are provided

Act 6

the generic terms 'consumer' and 'provider' be used as appropriate throughout the Act

Act 7

the term 'teaching' be defined to include the training of providers

Act 8

the term 'informed consent' be defined to refer equally to both health and disability services consumers

Act 9

the Act be amended to include an obligation that all persons exercising functions and powers under it shall have regard to the principles of the Treaty of Waitangi.

 

2.0 PART I HEALTH AND DISABILITY COMMISSIONER

2.1 Overview

Part I of the Act, sections 8 to 18, explains the status, appointment, qualifications, term and functions of the Commissioner. The Health and Disability Commissioner is a corporation sole and has perpetual succession. At any particular time an individual will be appointed by the Governor General, on the recommendation of the Minister of Health, to fulfil the Commissioner's functions as specified in the Act. Appointments may be made for a term of up to five years. The Act also allows for the appointment of a Deputy Commissioner who will undertake the functions of the Commissioner in his or her absence.

2.2 Health and Disability Commissioner - s8

Section 8 provides for the appointment of a Health and Disability Commissioner. The Act therefore enables the public to identify with a single person in the role of Commissioner at any one time and sets out functions for the Commissioner which are independent of any other rights-based agency.

2.2.1 Commissioner or Commission

There have been suggestions for a different approach. For example, the option that the Commissioner form part of the Human Rights Commission was addressed during the developmental stages of the legislation and rejected. In light of this review it is timely to reconsider the available options and a brief description of the advantages and disadvantages of these as follows:

  • Maintaining the current position

    There are advantages to the current position. These largely centre around the personalised approach which results from having a Commissioner. This is particularly important in the health and disability sector where many of the issues are of a highly personal nature. The appointment of a Commissioner enables consumers to relate to an individual and not a bureaucracy.

    The disadvantages of this option lie with the isolation that may affect an individual acting in the capacity of Commissioner and the inability of the Commissioner to delegate the writing of reports and recommendations.

  • Appointment of more than one Commissioner

    This option has advantages in terms of sharing workload and responsibilities and has been effective under the Ombudsmen Act, which provides for more than one Ombudsman. However, there are disadvantages which arise from the public being unable to identify with a single Commissioner and this option may necessitate the appointment of a Chief Commissioner. Certainly, in my view it would be preferable to refer to a Health and Disability Commissioners Act, rather than to a Health and Disability Commission Act if this option were adopted.

  • Appointment of the Commissioner as a Human Rights Commissioner

    This would put the Commissioner in a similar position to the Privacy Commissioner, who, although operating under separate legislation, also has responsibilities as a Human Rights Commissioner.

    Although this option would entail the Commissioner undertaking additional responsibilities, there may be some advantages. In particular, the Commissioner could utilise the Proceedings Commissioner of the Human Rights Commission, rather than having to appoint a separate Director of Proceedings as currently required. At present the Proceedings Commissioner is responsible for taking proceedings in respect of matters arising under both the Human Rights Act and the Privacy Act. The advantages of having the Director of Proceedings' functions carried out by the Proceedings Commissioner are separately discussed at 5.15.

In my view there are no critical issues which warrant change to the status of the Health and Disability Commissioner and I therefore recommend maintaining the current position.

2.2.2 Funding for the Commissioner

Like several other independent Commissioners, such as the Privacy Commissioner and the Human Rights Commissioners, the Health and Disability Commissioner is appointed by the Governor General on the recommendation of the relevant Minister, in this case the Minister of Health. The Commissioner is required to submit an annual report to the Minister and receives funding by an appropriation through Vote:Health.

By way of contrast, a number of other comparable independent bodies such as the Ombudsmen and the Commissioner for the Environment are appointed as Officers of Parliament. Their appointment is on the recommendation of the House of Representatives. Each Officer of Parliament has a separate Vote administered by the relevant Office.

While the Commissioner exercises investigation powers and functions independently of the Minister and Ministry of Health, the Commissioner is reliant on recommendations and arguments put forward by the Ministry to Treasury regarding the proportion of Vote:Health that Parliament may allocate. In my view this creates a potential conflict of interest, particularly given the likelihood that any increase in the Commissioner's allocation of Vote:Health would be at the expense of other Ministry requirements.

Further, the Act allows the Commissioner to make statements and publish reports about any matter affecting the rights of health and disability services consumers, including statements and reports about the Ministry of Health. One example is my report on the investigation into Canterbury Health Ltd. There is an inherent conflict in the Commissioner being dependent on the Ministry for favourable recommendations in respect of funding from Vote:Health, in direct competition to the Ministry's own projects.

I consider it preferable for the Health and Disability Commissioner to put his or her own case for funding directly to the Treasury and Ministers and note that the Privacy Commissioner in his recent review reached the same conclusion.

I therefore recommend that application of the Public Finance Act 1989 to the Health and Disability Commissioner Act be modified in addition to any changes to the Health and Disability Commissioner Act that may be necessary, so that the Commissioner is entitled to put the case for funding directly to the Treasury and relevant Ministers.

2.3 Deputy Commissioner - s9

Section 9 provides for the appointment of a Deputy Commissioner, who will undertake the functions of the Commissioner in his or her absence and who is appointed in the same manner as the Commissioner.

Given the close working relationship which is necessary between the Commissioner and a Deputy, it would be desirable for the Commissioner to be consulted by the Minister of Health in the selection of a Deputy. The Commissioner is well placed to assess the skill mix required in the organisation and the qualities that would foster a close working relationship between the Commissioner and Deputy.

I therefore recommend that section 9 be amended to require the Minister to consult with the Commissioner in recommending the appointment of a Deputy by the Governor General.

2.4 Qualifications for appointment - s10

The importance of the Commissioner's role is recognised by section 10, which sets out factors which must be taken into account by the Minister when recommending someone for appointment as Commissioner. Any person appointed should have knowledge of the Treaty of Waitangi and I therefore recommend that section 10(f) be amended to include reference to the Treaty.

2.5 Functions of the Commissioner -s14(1)

Section 14(1) lists the general functions of the Commissioner. These are set out below in full because of their importance to the Act:

a. a first priority, to prepare a draft Code of Health and Disability Services Consumers' Rights in accordance with section 19 of this Act:

b. In accordance with section 21 of this Act, to review the Code and make to the Minister any recommendations for changes to the Code:

c. To promote, by education and publicity, respect for and observance of the rights of health consumers and disability services consumers, and, in particular, to promote awareness, among health consumers, disability services consumers, health care providers, disability services providers, and purchasers, of the rights of health consumers and disability services consumers and of the means by which those rights may be enforced:

d. To make public statements and publish reports in relation to any matter affecting the rights of health consumers or disability services consumers or both, including statements and reports that promote an understanding of, and compliance with, the Code or the provisions of this Act:

e. To investigate, on complaint or on the Commissioner's own initiative, any action that is or appears to the Commissioner to be in breach of the Code:

f. To refer complaints, or investigations on the Commissioner's own initiative, to the Director of Proceedings for the purpose of deciding whether or not any further action should be taken in respect of any such breach or alleged breach:

g. Subject to section 15(2) of this Act, to make recommendations to any appropriate person or authority in relation to the means by which complaints involving alleged breaches of the Code might be resolved and further breaches avoided:

h. To prepare guidelines for the operation of advocacy services in accordance with section 28 of this Act:

i. To make suggestions to any person in relation to any matter that concerns the need for, or the desirability of, action by that person in the interests of the rights of health consumers or disability services consumers or both:

j. On the Commissioner's own initiative or at the request of the Minister, to advise the Minister on any matter relating to

i. The rights of health consumers or disability services consumers or both;

ii. The administration of this Act:

k. To report to the Minister from time to time on the need for, or desirability of, legislative, administrative, or other action to give protection or better protection to the rights of health consumers or disability services consumers or both:

l.To receive and invite representations from members of the public and from any other body, organisation, or agency on matters relating to the rights of health consumers or disability services consumers or both:

m. To gather such information as in the Commissioner's opinion will assist the Commissioner in carrying out the Commissioner's functions under this Act:

n. To do anything incidental or conducive to the performance of any of the preceding functions:

o. To perform such functions as the Commissioner is for the time being authorised to perform by the Minister, by written notice to the Commissioner after consultation with the Commissioner:

p.To exercise and perform such other functions, powers, and duties as are conferred or imposed on the Commissioner by or under this Act or any other enactment.

These functions are further elaborated through the rest of the Act. It is important for the Commissioner to have sufficiently broad functions to enable the purpose of the Act to be fulfilled. I consider the functions expressed in section 14 are appropriate to achieve this purpose. However, the Commissioner's function to prepare a draft Code in section 14(1)(a) is now redundant and I recommend it be removed.

2.6 General requirement to consult - s14(2)

Section 14(2)(b) requires the Commissioner, in performing his or her functions, to consult and co-operate with other agencies concerned with personal rights, including (among other bodies) the Director of Mental Health.

There has been considerable discussion over recent years about the relationship between the Act and Code, which apply to all health and disability services consumers, and the Mental Health (Compulsory Assessment and Treatment) Act 1992, which also confers a number of rights on consumers of mental health services who are subject to compulsory assessment and treatment. There is considerable overlap between these rights and, in my view, it is timely to reconsider the ambit and nature of the rights conferred by the Mental Health Act and the means by which they are enforced in light of the establishment of the Commissioner as an independent watchdog for the entire health and disability sector.

In particular, there is a need to consider the relationship between the Commissioner and District Inspectors operating under the Mental Health Act and under the control of the Director of Mental Health. In accordance with the general requirement of section 14(2), I am currently considering these issues with the Director of Mental Health, together with other parties, in a working group convened by the Ministry of Health.

The Ministry of Health has suggested the Health and Disability Commissioner Act be amended to include specific reference to the interface with District Inspectors. In particular, it has been suggested there should be an obligation for the Commissioner to consult and, in some cases, refer complaints to District Inspectors through a change to section 40 of the Act. I do not agree with this suggestion for several reasons. First, section 40 deals with the relationship of the Commissioner to other rights agencies established under distinct statutes with equivalent, detailed investigation functions, i.e. the Ombudsmen, Privacy Commissioner and Human Rights Commission. The functions of District Inspectors are not so clearly prescribed. Secondly, District Inspectors are one of many investigating agents with whom the Commissioner regularly consults and refers as a matter of practice under section 59(4) of the Act. Other bodies include the Coroner, ACC and the Police. There is no special reason why the relationship with the District Inspectors should be treated differently from these other agencies.

My current practice is to consult on a case by case basis with District Inspectors where I receive a complaint from a mental health consumer. I consider the Act currently provides sufficient scope for a good working relationship to be established without the need for amendment or formal protocol. However, I do consider that an amendment is required to the Mental Health Act, as certain functions of District Inspectors are now superfluous since the enactment of the Health and Disability Commissioner Act, and I have advised the Ministry of my views in this regard.

2.7 Director of Proceedings - s15

2.7.1 Location of sections relating to Director

Sections 15, 47, 49 and sections 50 to 58 relate to the Director of Proceedings. I have recommended below at 5.11.1 that all sections relating to the Director of Proceedings, including section 15, be located together in a separate Part of the Act. This would be consistent with the structure of the Act as it relates to the advocacy functions and would emphasise the independence of the various statutory positions. It would also minimise the confusion which results from having to refer to two separate parts of the Act to ascertain the Director's functions and accountabilities.

An appropriate place to locate these sections would be after Part IV, Investigation of Complaints. It is only after an investigation by the Commissioner that the Director of Proceedings may become involved in the matter.

2.7.2 Reporting functions of Director

Unlike the Commissioner and the Director of Advocacy, the Director of Proceedings has no obligation to report separately to the Minister of Health in respect of the performance of his or her functions. Indeed, there is no explicit obligation on the Director of Proceedings to report to anyone, although reporting to the Commissioner no doubt forms part of the Director's general responsibility under section 15(3) for the "efficient, effective and economical management" of the Director's activities.

At first sight this lack of reporting requirement may seem unsatisfactory. However, in performing the statutory functions, the Director of Proceedings has obligations and accountabilities to the Court (as an officer of the Court) in addition to those which are owed to the Commissioner. For this reason, I do not consider there is a need to amend the reporting requirements of the Director of Proceedings.

2.8 Review of operation of Act - s18

Section 18 sets out a requirement that the Commissioner carry out a review of the operation of the Act and report the findings to the Minister. After the current review, this is to occur at intervals of not more than 5 years.

The suggestion has been made that such a review is more appropriately carried out by an independent body, rather than the Commissioner. While this suggestion appears to have merit, the Commissioner's report to the Minister is simply the first step in a process that may ultimately lead to legislative change. The usual legislative process must still be followed before any amendments become law, and this provides ample opportunity for public scrutiny of any suggested change. Nor does the Act prevent another body carrying out a review if it so wished.

I consider that the Commissioner, as the person with the most intimate knowledge of the operation of the Act, is the most appropriate person to undertake its review and provide advice in the first instance to the Minister.

2.9 Summary of recommendations

I recommend that:

Act 10: the application of the Public Finance Act be modified to allow the Commissioner to put a case for funding directly to Treasury and relevant Ministers 
Act 11: section 9 be amended to require the Minister to consult with the Commissioner in recommending the appointment of a Deputy by the Governor General 
Act 12: section 10(f) be amended to include reference to the Treaty of Waitangi 
Act 13: the Commissioner's function in s14(1)(a) to prepare a draft Code be removed.

3.0 PART II CODE OF HEALTH AND DISABILITY SERVICES CONSUMERS' RIGHTS

3.1 Overview

Sections 19 - 23 cover the preparation, content, review and notification of the Code. These sections set out the parameters by which the Commissioner must prepare and review the Code and undertake public consultation to ensure that all interested parties are involved.

3.2 Preparation of the draft Code - s19

Section 19 relates to the initial preparation of the draft Code. This task was complete in 1995 and this section is now redundant. I therefore recommend that section 19 be removed.

Sections 22 and 23 also relate to the initial preparation of the draft Code, but in addition have application to any review of the Code. For the reasons discussed below at 3.4, I recommend that section 23 also be removed, but that section 22 be retained in relation to future reviews of the Code, with an amendment to its wording to remove reference to the initial preparation of the draft Code.

3.3 Content of the Code - s20

Section 20 governs the content of the Code. If submissions are made as part of this review suggesting changes to the content of the Code, then an amendment to section 20 of the Act may first be necessary. The following discussion covers both suggestions for minor amendment to section 20 and matters that currently fall outside the scope of the Code as permitted by the Act, but in respect of which a number of comments have been made over the past few years.

3.3.1 Equal reference to health and disability services consumers

When it began its passage through Parliament, the legislation now known as the Health and Disability Commissioner Act applied to the provision of health services only, (the original bill was known as the Health Commissioner Bill). To reflect developments at the time, the Bill was amended to cover the disability sector also. However, there are still a few places in the Act where a distinction between health and disability services remains.

For example, when discussing the specific content of the Code, section 20 still in places distinguishes between health and disability services. Section 20(1)(a) refers to the principle of informed consent in respect of health care procedures; section 20(1)(b) refers to the obligations of health care providers in respect of informed consent; and section 20(1)(c)(ii) refers to rights and obligations relating to health teaching and health research.

With regard to informed consent, the Code as prescribed by the Governor General in fact confers rights and imposes obligations on both health and disability services consumers and providers. The authority for extending its provisions on informed consent to disability services consumers and providers came from section 20(2)(a), which enables the Commissioner to include in the Code any matter relating to the rights of disability services consumers which the Commissioner considers of particular importance to such consumers. There is no question that informed consent is such a matter and this should be explicitly reflected in the Act.

With regard to rights in respect of teaching and research, I have already recommended that the definition of 'disability services' include disability teaching and research (1.2.3).

Assuming acceptance of my earlier recommendations for a generic reference to 'consumers', 'providers' and 'services' as appropriate throughout the Act (1.2.1, 1.2.2, 1.2.3), I therefore recommend that:

'section 20(1)(a) be amended to refer generically to 'services',

'section 20(1)(b) be amended to refer generically to 'providers', and

'section 20(1)(c)(ii) be amended to refer generically to 'teaching and research'.

While these changes do not add to the rights which already exist under the Code, as a matter of principle they serve to emphasise that disability services consumers should be entitled to equal protection under the Act.

It would be consistent with these changes to also amend section 20(2)(a) so that it too refers generically to consumers and not just to disability services consumers as is currently the case.

3.3.2 Reference to Treaty of Waitangi

Consistent with my recommendation in respect of Right 1(3) of the Code and to help ensure ownership of the Code by Maori as a tool for empowerment, I recommend that section 20(1)(c)(iii) be amended to include specific reference to the needs, values, and beliefs of Maori and recognition of their status as tangata whenua in the Treaty of Waitangi.

3.3.3 Rights of providers and responsibilities of consumers

Section 20 provides that the Code shall contain provisions relating to the duties and obligations of providers and the rights of consumers. It does not enable the inclusion of provisions relating to the duties and obligations of consumers, or the rights of providers.

Since the Act and Code came into force, there have been a number of comments suggesting that the Code should also cover consumer responsibilities and provider rights. The concern has been expressed that without full participation and co-operation by consumers the overall quality of service is affected, and that the pendulum has now swung too far in favour of consumers at the expense of providers.

I disagree and do not consider a change should be made. The Act is consumer law and seeks to promote and protect consumer rights for very good reason. It is indisputable that an imbalance exists between providers and consumers, arising from a lack of information and from the consumer's inherent vulnerability when receiving health and disability services. In recognition of this imbalance, the Act seeks to negate some of its potential effects. By providing for consumer rights in the Code, the Act aims to foster greater partnership between providers and consumers, thereby improving the quality of services.

Furthermore, many of the concerns expressed by providers are already addressed, either in the Code or elsewhere;

  • a standard of reasonableness is implicit in all the rights enforced by the Code. Providers will not be in breach of the Code if they have taken reasonable actions in the circumstances to give effect to it (Clause 3). Any behaviour by a consumer which prevents or hinders a provider from carrying out his or her obligations will be taken into account. For example, effective communication (which is dealt with in Right 5 of the Code) depends on information flowing in both directions. Accordingly, it is implicit that consumer are obliged to assist their service provider in this regard. As long as providers have taken reasonable steps to facilitate the most effective communication in the circumstances, the Code is satisfied.
  • consumer duties and obligations are already covered by other general legislation. For example, it has been suggested that providers have a right to be free from physical abuse by consumers. Such matters are adequately covered by the criminal law.
  • section 37 includes scope for not investigating trivial or vexatious complaints or those which are not made in good faith.
  • ample procedural protection exists under the Act for providers being investigated for an alleged breach of the Code. For example, sections 41 and 67 ensure an opportunity is given for input into the process.

3.3.4 Access to services

One of the early criticisms of the Code was that it does not contain a right to access services and it has been suggested that the Code should include the right to receive particular services free of charge.

Section 20, as it currently stands, addresses only the quality of service delivered and contains no obligation that providers must provide service to consumers as of right. This is logical given the Act applies to all health and disability services, regardless of whether the service is by a private or public provider and regardless of the avenues from which it is funded (e.g. State, insurer, ACC, ISS, private funds).

The Act does not address which services are to be funded by public funds, rather it deals with how services are delivered. Decisions on what services are to be provided through public funding are made by the State, through the Health Funding Authority, ACC or other governmental agencies, such as those in the education and income support areas.

I do not consider that the role of the Health and Disability Commissioner should include public funding or access decisions which are matters more appropriately addressed under the Health and Disability Services Act 1993 and other relevant legislation. Additionally, the Health and Disability Commissioner Act is appropriately focused on consumer rights to quality services and for clarity and accountability it would be unhelpful to blur this distinction.

Other suggestions regarding the inclusion of access in the Code stem from the Charter of Patient Rights established in the United Kingdom. I have spoken with the UK Health Ombudsman with respect to these rights and reviewed the Charter which deals mainly with timeframe standards rather than actual delivery of service. It has not been successful in terms of the British health system. My recommendation is that decisions on publicly funded services and relevant service standards must not be included in this Act and Code.

3.4 Review of the Code - ss21-23

Section 21 provides that the Commissioner shall complete a review of the Code and make recommendations to the Minister at intervals of not more than 3 years.

The specific consultation requirements for a review are currently set out in section 22 (incorporated by section 21(3)) and section 23. These requirements are the same as those which existed for preparation of the initial draft Code and seem to require two levels of consultation.

In particular, the Commissioner is to:

  • invite general submissions from all persons and bodies with an interest in health and disability service matters, including relevant statutory agencies, to assist in the development of the report to the Minister (s23),
  • publish the availability of the Commissioner's proposed report and consult on the report before submitting it to the Minister (s22).

While this detailed consultation was essential to drafting the initial Code, I do not consider it necessary to maintain two levels of consultation for future reviews. In particular, the obligation to consult representative groups in the development of the report to the Minister, in addition to the obligation to consult on the report itself, seems unnecessary. The Commissioner's general obligation under section 14(2) includes maintaining links and consulting with representative bodies. Additionally, input from outside groups is continually received as a natural consequence of the performance of the Commissioner's functions.

Given this ongoing feedback and the level of resources necessary to conduct such a consultation process, I recommend that section 23 be removed and the timing of reviews be amended from no more than 3 years, to intervals of no more than 5 years.

3.5 Summary of recommendations

I recommend that:

Act 14 section 19 regarding the initial preparation of the Code be removed

Act 15 section 20 be amended to emphasise the equal protection of both health and disability service consumers in the Act, in particular:

  • section 20(1)(a) be amended to refer generically to 'services'
  • section 20(1)(b) be amended to refer generically to 'providers'
  • section 20(1)(c)(ii) be amended to refer generically to 'teaching and research'
  • section 20(2)(a) be amended to refer generically to 'consumers', not just to disability services consumers

Act 16 section 20(1)(c)(iii) be amended to include specific reference to the needs, values, and beliefs of Maori and recognition of their status as tangata whenua in the Treaty of Waitangi

Act 17 section 21 regarding the timing of reviews be amended from intervals of no more than 3 years, to intervals of no more than 5 years

Act 18 section 23 be removed, leaving a requirement on review of the Code for consultation in respect of the proposed report to the Minister.

 

4.0 PART III HEALTH AND DISABILITY SERVICES CONSUMER ADVOCACY SERVICE

4.1 Overview

Part III of the Act, sections 24 to 30, sets out how the advocacy services are to operate. In particular, it deals with the appointment and functions of the Director of Advocacy, the establishment and operation of the advocacy services and the functions of advocates.

Advocates are not investigators and their role is not to decide whether there has been a breach of the Code. This is the role of the Commissioner. Nor are they mediators. Rather, advocates take the side of consumers and assist them in resolving complaints about a possible breach of the Code directly with the service provider.

The operation of advocacy services is therefore essential to the Act's goal of resolution of complaints at the lowest appropriate level. It is important that these services are structured in such a way that resources are used efficiently and advocacy is available to as many people as possible who need its assistance. The functions of advocates must also facilitate this goal and best ensure that the principles of the Code are widely understood and applied.

4.2 The Director of Advocacy - ss24 and 25

The Act provides for the appointment, by the Commissioner, of a Director of Health and Disability Services Consumer Advocacy. The functions of the Director of Advocacy are set out in section 25 as being:

(a) To administer advocacy services agreements:

(b) To promote, by education and publicity, advocacy services:

(c) To oversee the training of advocates:

(d) To monitor the operation of advocacy services, and to report to the Minister from time to time on the results of that monitoring.

Section 24 provides that the Director shall act independently of the Commissioner in performing his or her functions, but be responsible to the Commissioner for the efficient, effective and economical management of the activities of the Director.

The structural independence of the Director from the Commissioner was introduced into the legislation to protect the Commissioner's impartiality when investigating and mediating complaints. Concern had been expressed in the developmental stages of the legislation that the Commissioner's position might be compromised if advocates operated directly under the Commissioner's control. By their very nature advocates are not impartial but take the side of the consumer. In contrast, when investigating complaints it is essential that the Commissioner remains impartial and independent of both providers and consumers. The decision was therefore made to place advocacy services under the control of an independent Director.

I consider that the balance currently struck in the legislation between independence and the Director's responsibility to account for efficient, effective and economical management is appropriate. However, as discussed below, I consider the present structure for the provision of advocacy services is cumbersome. The changes I recommend below would require consequential changes to the functions of the Director of Advocacy, as set out in section 25, but would not compromise the independence of either the Director, or individual advocates, from the Commissioner.

4.3 Structure of Advocacy Services

The Act envisages the purchase of advocacy services by the Director of Advocacy through a series of advocacy service agreements entered into by the Director on behalf of the Crown. The definitions in the Act of 'advocacy services agreement' and 'advocacy services' means that the Director is unable to employ advocates directly. Instead, the Director of Advocacy must contract with service providers who, in turn, are the employers of individual advocates. There are currently a number of regional service contracts for the delivery of advocacy services throughout New Zealand.

Although the Act permits the Director to enter into a single national service contract, the "purchaser/provider split" model is mandatory under the Act. I consider that the structure required by the purchaser/provider split creates an unnecessary layer of management between the Director of Advocacy and the advocates. This results in the duplication of overhead costs between the Director of Advocacy on the one hand and the advocacy service provider on the other. For example, there is duplication of governance, management, monitoring and administrative functions with the inevitable resource inefficiencies that result.

This duplication cannot be remedied by the Director engaging a single advocacy service provider. A better and more efficient arrangement would be for the Act to provide for advocates to be employees of the Commissioner, but to have a statutory requirement to operate independently of the Commissioner and subject to the supervision and control of the Director of Advocacy. The advocates would then operate as a single national service. This would preserve all the advantages of the current advocacy service model, such as meeting the needs of the local community, but would promote:

  • consistent implementation of policies and processes
  • improved quality control and monitoring
  • an improved national identity and profile for the advocacy service
  • consistent training
  • cost efficiency.

As mentioned above, the Health Commissioner Bill originally envisaged advocates being employed by the Commissioner. This arrangement was criticised for the reasons set out at 4.2. Under my recommended structure the necessary independence of the advocates from the Commissioner would be preserved through new provisions similar to those which ensure the independence of the Director of Advocacy.

In reviewing this issue I also considered other options, including:

  • providing for the Director of Advocacy, either on behalf of the Crown or as an employee of the Commissioner, to be the employer of advocates, and
  • retaining the present structure but clarifying that the Director can contract with individual advocates as independent contractors.

The first option would involve considerable complexity. If the Director were to employ advocates on behalf of the Crown, then the Crown would be an advocacy services provider, and the advocates public servants. I consider this degree of Crown involvement would create a number of new complex issues which are undesirable. Furthermore, the Director as employer in his or her own right, while also an employee of the Commissioner, would raise complexities relating to the status and entitlements of advocates, relative to employees of the Commissioner, funding streams would be different and separate schedules regarding employment would be needed.

The second option would offer the benefit of removing an unnecessary layer of management, but would not enable the Director to exercise the level of control and supervision, and confer on advocates the protection, involved in an employment relationship.

I therefore recommend that the Act provide for advocates to be employees of the Commissioner, but with the obligation and right to act independently of the Commissioner and subject to the supervision and control of the Director of Advocacy. The Director of Advocacy would act independently in carrying out this function, as provided in section 24(2), but would be responsible to the Commissioner in terms of section 24(3) for the efficient, effective and economical management of what would be a single national advocacy service. If this recommendation is implemented there would need to be appropriate transitional arrangements to any existing advocacy service agreements.

This recommendation requires a number of sections in the Act to be amended. By way of example, section 26 would need to be amended by replacing 'advocacy services' with 'advocate'. At this stage I have not included drafting to accompany this recommendation in Appendix A and await feedback from the consultation before doing so.

4.4 Functions of Advocates - s30

Section 30 lists the general functions of advocates. Some of these functions are problematic and require clarification. My specific recommendations are discussed below, but in general terms my main concerns are as follows.

First, the advocates' functions are not all expressed with reference to the Code. While the Code is central to the Act and it seems clear from the context of the Act as a whole that the activities of advocates also centre around the Code, this is not always made explicit. I acknowledge that there may be important consumer rights in the health and disability arena which exist beyond the scope of the Code, but given the overall aim of the Act and the limited resources available, advocacy carried out under the Act must concentrate on the rights in the Code.

Secondly, advocates have an essential role in education and promotion of the Code, and in assisting with complaints about possible breaches of the Code. Both these types of activity are important from the point of view of preventing future breaches of the Code. However, difficulties arise if this preventative function leads to advocates accompanying consumers while they receive services. This means that instead of trying to resolve complaints for past services, advocates, by their presence, are acting as support persons in order to assist the consumer receiving further services. There are obvious benefits in this but, with the limited exception of section 30(d) relating to informed consent, this activity is not, in my view, a function of advocates. This type of advocacy involvement can lead to difficulties where the Commissioner subsequently has to commence an investigation.

The presence or conduct of the advocate during the provision of service may itself be relevant to the investigation. This would leave the Commissioner in the difficult position of having to take into account the advocate's role and possibly commenting on it in a formal way as part of the Commissioner's opinion.

There are many other advocacy groups in the community that can assist consumers with the actual delivery of services without advocates operating under the Act becoming involved in this way. Additionally, the Code itself provides for the presence of support persons.

Finally, the functions do not refer equally to health and disability services and this should be remedied. Therefore, regardless of whether the specific recommendations below are implemented, I recommend that all references in section 30 to services (or procedures), providers and consumers apply equally to the health and disability sector (for example, section 30(d), (e) and (f)(iii) all require amendment). Where possible, generic reference to 'services', 'providers' and 'consumers' should be used.

4.4.1 Section 30(a)

Section 30(a) provides that an advocate has the function "to act as an advocate" for consumers. Although this makes it clear that advocates are to advocate (that is, to take the consumer's side), rather than, say, mediate between providers and consumers, the section fails to make it clear that advocacy is to be in respect of the Code. I recommend that the section be amended to explicitly refer to advocacy in respect of the Code.

4.4.2 Section 30(b)

Section 30(b) provides that advocates shall use their best endeavours to ensure that health and disability services consumers are made aware of the provisions of the Code. Consistent with my recommendation in relation to section 30(f)(i), I recommend that this function be amended to include an obligation to use their best endeavours to ensure consumers are also made aware of the Health and Disability Commissioner Act, including the role of the Commissioner. I also recommend that reference to "the provisions of the Code" be changed to "the rights under the Code".

4.4.3. Section 30(c)(i)

For the reasons set out above, I recommend that reference to the 'rights' of consumers be expressly limited to rights under the Code.

4.4.4 Section 30(d) and 30(e)

Section 30(d) provides that advocates shall assist health consumers, or persons entitled to consent on their behalf, to ensure that the health consumer's informed consent, or that of the person entitled to consent on their behalf, is obtained to the carrying out of a health care procedure. This function implies the availability of advocates throughout the informed consent process.

The difficulties which arise through advocates being involved in the actual delivery of service, including the informed consent process, are discussed above. Further, the section fails to clearly address the role of advocates in situations where a consumer is not competent and no-one entitled to consent on their behalf is available. There is a risk that advocates might become involved and this is not appropriate. Other legislation deals with this situation and, if necessary, assistance should come from the Courts. The Advocacy Guidelines issued by the Commissioner make it clear that advocates are not to carry out uninstructed advocacy.

While informed consent is singled out for mention, it would be consistent with the approach to advocacy suggested by this section for advocates to be available whenever a service is provided, to ensure all the rights in the Code are complied with. Apart from the historical origins of the Act, there is no clear reason why informed consent should be singled out from the other rights. Further, it is simply not feasible for advocates to be available in this way, nor is it appropriate.

I therefore recommend that this function be removed.

Further, I also recommend that section 30(e) be removed. Section 30(e) provides for the promotion, by education and publicity, of an understanding of, and compliance with, the principle of informed consent. Rather than singling out informed consent, advocates should be promoting an understanding of and compliance with all the rights in the Code. Section 30(b) and 30(c) already deal with this wider education function. If it is considered necessary to retain section 30(e), then it should be amended to ensure that the informed consent process is understood and complied with.

4.4.5 Section 30(f)(i)

Section 30(f)(i) states that advocates shall provide information to health care and disability services providers on the rights of consumers. I recommend that this function be amended to include the provision of information on the Health and Disability Commissioner Act, including the role of the Commissioner, as well as the rights of consumers under the Code.

For the reasons set out above, I also recommend that the reference to information on the rights of consumers be expressly limited to rights under the Code.

4.4.6 Section 30(f)(iii) and (iv)

Section 30(f)(iii) states that advocates shall provide advice to providers on the establishment and maintenance of procedures for providing proper information to consumers for the obtaining of consent. Section 30(f)(iv) provides for the giving of advice on procedures to ensure the protection of the rights of consumers, including monitoring procedures and complaints procedures.

With regard to complaints procedures, Right 10 of the Code itself now provides this advice. With regard to procedures to ensure the protection of rights, including the obtaining of informed consent, advocates may not necessarily have the knowledge and qualifications to give this kind of risk management advice, particularly in relation to large, complex organisations such as hospitals and in areas such as standards. There is a risk in both cases that advice of this nature may implicate advocates too closely in the actual delivery of services. Further, it requires advocates to have expert knowledge on procedures and effectively to give legal advice. This is not advisable and I therefore recommend these functions be removed.

If a decision is ultimately made to retain these functions, then for the reasons set out above the reference to rights of consumers in section 30(f)(iv) should be limited expressly to rights under the Code.

4.4.7 Section 30(g), (h) and (i)

Section 30(g), (h) and (i) give advocates the following functions in respect of complaints:

"(g)To receive complaints alleging that any action of any health care provider or disability services provider is or appears to be in breach of the Code:

(h)In respect of a complaint of the kind referred to in paragraph (g) of this section, to represent or assist the person alleged to be aggrieved for the purposes of endeavouring to resolve the complaint by agreement between the parties concerned:

(i)To provide assistance to persons who wish

(i)To pursue a complaint of the kind referred to in paragraph (g) of this section through any formal or informal procedures (including proceedings before a health professional body) that exist for resolving that complaint:

(ii)To make a representation to the Commissioner or any other body or person in respect of any matter that is or appears to be in breach of the Code:"

I recommend that these provisions be amended to give greater emphasis to the fact that an advocate's primary role on receipt of a complaint is to assist with resolution between the parties. Furthermore, it would be useful to emphasise that the Code itself now assists with the resolution process, both by clarifying what a consumer's rights are, and by setting out a process which obliges providers to deal with complaints in an appropriate manner.

Some of the wording currently used could also be improved on. For example, it is preferable to refer to advocates assisting consumers, rather than representing them. The word 'represent' implies taking on authority for someone else and is inconsistent with the notion of consumer empowerment implicit in the Act and Code. An authorisation for advocates to 'assist' consumers is sufficient to cover the situation which may sometimes arise of an advocate having to be physically present on a consumer's behalf when the consumer is unable to be present personally.

I therefore recommend the wording below in 4.4.9 (s30(e), (f) and (g)) be adopted to describe the advocates' complaints functions.

4.4.8 Section 30(k)

Section 30(k) provides that an advocate has the function of reporting to the Commissioner on any matter that, in the advocate's opinion, should be drawn to the Commissioner's attention. Advocates have been advised that this includes reporting concerns about a provider's competence to practice, or any other matter that may impinge on consumer safety. This should occur regardless of whether a particular complaint has been resolved between the parties.

It is only by reporting such concerns to the Commissioner that appropriate steps can be taken to protect the wider body of consumers and ensure the proper accountability of providers. The overall purpose of the Act is to promote and protect the rights of consumers - this includes the rights of all consumers. While resolution of complaints at an individual level is an important aspect of the Act, this is intended as a means of enhancing, not jeopardising, the overall quality of services. Much concern has been expressed, especially by the health professional bodies, that resolution of complaints at advocacy level without proper reporting of concerns about professional conduct may conceal matters for which providers should be accountable.

Although this issue is already covered by section 30(k), which refers generally to matters which should be drawn to the Commissioner's attention, the overall wording of the section does not put sufficient emphasis on this obligation. For example, the section refers to reporting to the Commissioner "from time to time". Such wording implies that this function does not concern something in respect of which advocates must be constantly vigilant and should be removed.

I therefore recommend that section 30(k) be amended to express more strongly the requirement that advocates report to the Commissioner on matters that should be brought to the Commissioner's attention by removing the words "from time to time". Furthermore, it would be helpful to make explicit that this obligation to report includes advising concerns about a provider's competence to practice.

4.4.9 Suggested wording for functions of advocates

The suggested wording for the functions of advocates is set out in full below, as well as in Appendix A, for clarity's sake

An advocate shall have the following functions:

(a) To act as an advocate for consumers in respect of the Code:

(b) To use his or her best endeavours to ensure that consumers to whom services are provided, or are proposed to be provided, by a provider are made aware of the Health and Disability Commissioner Act, including the role of the Commissioner and the rights under the Code:

(c) Having regard to the needs, values, and beliefs of different cultural, religious, social, and ethnic groups, to provide information and assistance to consumers, and members of the public for the purposes of

(i) Promoting awareness of the rights of consumers under the Code:

(ii) Promoting awareness of the procedures available for the resolution of complaints involving a possible breach of the Code:

(d) In respect of providers in the area that the advocate serves,

(i) To provide information on the Health and Disability Commissioner Act including the role of the Commissioner and the rights of consumers under the Code:

(ii) To promote awareness of advocacy services:

(e) To receive complaints alleging that any action of any provider is or appears to be in breach of the Code and to assist the person alleged to be aggrieved for the purpose of endeavouring to resolve the complaint by agreement between the parties concerned.

(f) In respect of a complaint of the kind referred to in paragraph (e) of this section, to provide information on the Code, including complaints procedures required by the Code.

(g) In respect of a complaint of the kind referred to in paragraph (e) of this section, to assist persons who wish to pursue a complaint through any formal or informal procedures that exist for resolving the complaint (including providing assistance in making a representation to the Health and Disability Commissioner and in proceedings before a health professional body).

(h) To report regularly to the Director of Advocacy on the operation of advocacy services in the area served by the advocate:

(i) To report to the Commissioner on any matter relating to the rights of consumers (whether in relation to a particular consumer, or a group of consumers, or in relation to consumers generally) that, in the advocates opinion, should be drawn to the attention of the Commissioner, including matters of provider competence:

(j) To exercise and perform such other functions, powers, and duties as are conferred or imposed on advocates by or under this Act or any other enactment.

4.5 Summary of recommendations

I recommend that:

Act 19

advocates become employees of the Commissioner, but with the obligation and right to act independently of the Commissioner and subject to the supervision and control of the Director of Advocacy

Act 20

all references in section 30 to rights be amended to refer to rights "under the Code", in particular, section 30(a) should be amended to refer to the role of an advocate "to act as an advocate for consumers in respect of the Code" and section 30(c)(i) to refer to the rights of a consumer "under the Code"

Act 21

all references in section 30 to services (or procedures), providers and consumers be amended to apply equally to the health and disability sector, including section 30(d), (e) and (f)(iii)

Act 22

section 30(b) to include an obligation for advocates to use their best endeavours to ensure consumers are made aware of the Health and Disability Commissioner Act, including the role of the Commissioner, and that reference to the "provisions of the Code" be changed to "the rights under the Code"

Act 23

section 30(d) which provides that advocates shall assist health consumers to ensure that the health consumer's informed consent is obtained to the carrying out of a health care procedure be removed

Act 24

section 30(e) which provides for the promotion, by education and publicity, of an understanding of, and compliance with, the principle of informed consent be removed, as advocates already have a general education function in respect of all the rights in the Code under section 30(b) and (c).

Act 25

section 30(f)(i) be amended to include reference to the provision of information on the Health and Disability Commissioner Act, including the role of the Commissioner, as well as the rights of consumers under the Code

Act 26

section 30(f)(iii) and (iv) regarding the provision of advice to providers be removed

Act 27

sections 30(g), (h) and (i) be amended to emphasise the role of advocates in resolving complaints and the usefulness of the Code itself in this process. These sections should refer to advocates assisting consumers rather than representing them

Act 28

section 30(k) be amended to express more strongly a requirement that advocates report to the Commissioner on matters that should be drawn to her attention, including making explicit reference to concerns about a provider's competence to practice and removing the words "from time to time".

 

5.0 PART IV INVESTIGATION OF COMPLAINTS

5.1 Overview

Part IV of the Act, sections 31 to 58, deals with the Commissioner's process for receiving and investigating complaints under the Act.

  • Sections 31 to 40 cover the method by which people can make complaints, the Commissioner's options on receipt of a complaint, the decision to investigate (including the grounds for declining to investigate), notification of complaints to the relevant professional body, and the steps for referring complaints to the Ombudsmen, Privacy Commissioner or Human Rights Commission.
  • Having decided to investigate a complaint, sections 41 to 49 then cover various procedural requirements the Commissioner must follow, the Commissioner's ability to refer a matter elsewhere for action, options and powers after investigation, and the functions and powers of the Director of Proceedings.
  • The remaining sections of Part IV essentially deal with actions before the Complaints Review Tribunal.

Part IV of the Act has only been operational since 1 July 1996. There has therefore been limited time to evaluate its effectiveness. This is especially so in relation to the provisions relating to proceedings by the Director of Proceedings. Nevertheless, some clear indications for change have emerged. In particular, I am concerned that the Act does not provide sufficient flexibility to deal with complaints in a realistic and effective manner within allocated funding. Increased options are needed for the Commissioner so that the substantial powers of investigation under the Act are used as effectively as possible and on essential matters only.

By way of introduction, a brief explanation of the Act's existing complaints procedure might be helpful. I have already discussed and made recommendations in relation to advocacy, which is one option for resolving complaints under the Act. Other options include the Commissioner's ability to investigate and mediate. These are exercised quite independently from advocacy and, in the case of investigation, involve an impartial assessment by the Commissioner of the matter alleged to breach the Code.

Where an investigation is undertaken the Commissioner gathers the necessary information to form an opinion on whether there has been a breach of the Code and, as part of this process, gives the provider an opportunity to respond. The Commissioner may encourage voluntary settlement of complaints by means of a referral to advocacy, or by mediation, although this would not usually occur where the matter raises issues of public safety.

Before an opinion finding a provider in breach of the Code is finalised, it is my practice to send the opinion, in provisional form, to the provider for further comment. This is an opportunity for the provider to correct any errors of fact and to respond to any adverse comment.

Where the Commissioner is of the opinion that there has been a breach of the Code, the Commissioner may make various reports and recommendations. Given the Act's aim of making change in the sector to improve the quality of services, I usually make recommendations, which may range from an apology, to staff training, or implementing systems to ensure the breach is not repeated.

The matter may also be referred to the Director of Proceedings, who decides whether to institute proceedings before the Complaints Review Tribunal or the various health professional disciplinary bodies. Complaints Review Tribunal proceedings may also be commenced directly by the consumer in cases where the Director of Proceedings decides not to pursue the matter. The power to order a provider to pay damages or a fine, or to regulate the terms under which the provider can practice, are powers held by the Complaints Review Tribunal and/or the various disciplinary tribunals, not the Commissioner.

An overview of the Commissioner's processes is currently available on a 10 minute video entitled "Code of Rights - Provider's Introduction". If you would like to view this video, copies can be obtained from my office.

5.2 Who can complain - s31

The Act allows any person to make a complaint to the Commissioner or to an advocate. Complaints may therefore come from a variety of sources, including consumers, family and friends of consumers, concerned providers etc.

The Commissioner's ability to receive complaints from persons other than the consumer is very important. Many consumers are particularly vulnerable and unable to complain for themselves. Some are afraid to complain because of concerns about the effect this may have on the delivery of services. This may be particularly so for consumers such as the elderly, or those who receive care in residential facilities.

From time to time third party complaints are not made in good faith, or are in respect of matters the consumer does not wish to take further. The Act caters for these situations by providing the Commissioner with a discretion to take no action on a complaint in certain circumstances (see s37(1)). Care is always taken in assessing whether to proceed with a third party complaint.

Because it is important to ensure concerns about services are brought to the Commissioner's attention, I do not consider there should be any amendment to this section.

5.3 Advocate to refer unresolved complaint to Commissioner - s34

Where a complaint is made to an advocate and the advocate is unable to resolve it, the Act currently provides that the advocate must refer the complaint to the Commissioner.

From time to time advocates have expressed concern about this requirement in situations where a consumer has made a complaint but no longer wishes to pursue it further. They have interpreted the section as requiring them to refer such complaints to the Commissioner despite the consumer's wishes. I interpret section 34 as referring to current complaints. Where a consumer does not wish to pursue the matter, I consider the specific complaint to be withdrawn or resolved between the parties and do not believe there is an obligation under section 34 to refer the complaint to the Commissioner.

Quite apart from section 34, where an advocate is concerned that wider issues arise that should be brought to the Commissioner's attention, then even though the consumer does not wish to proceed or the matter is resolved, the advocate is obliged under section 30(k) to report to the Commissioner.

While I do not consider that section 34 gives rise to the problem suggested, I nevertheless recommend an amendment to the wording of the section to clarify another matter, namely, that the advocates' role is to assist consumers to resolve complaints, rather than advocates resolving complaints themselves. I therefore suggest that reference in section 34(b) to the advocate being unable to resolve the complaint be substituted with reference to the complaint being unable to be resolved.

5.4 Commissioner's ability to investigate and options on receipt of a complaint - ss35 and 36

The Commissioner's investigation function is set out in section 35 and covers the Commissioner's dual ability to investigate individual complaints as well matters on his or her own initiative. The reasons for this broader investigation role have not always been clearly understood, but have now been clarified beyond doubt by the High Court in Nicholls v Health and Disability Commissioner [1997] NZAR 351. The investigation of complaints is a means to the wider end of promoting and protecting consumer rights. To achieve this wider end, the Commissioner must have discretion to investigate on her own initiative when circumstances warrant. This includes the investigation of systems issues, as well as the investigation of discrete events. I do not consider any change to section 35 is necessary. The following discussion for greater flexibility in deciding whether or not to investigate complaints is consistent with the requirement that the Commissioner keep in sight the bigger picture of long term or systemic change necessary in the sector so that the rights of all consumers are protected.

One of the biggest challenges I face is to achieve "fair, simple, speedy and efficient" resolution of complaints, given the large volume of complaints received, the growing seriousness and complexity of these complaints, and the limited resources available. It has become increasingly necessary to prioritise complaints so that the more serious matters, often involving public safety, get adequate attention with emphasis on education to prevent problems from arising in the first place.

A more problematic feature of the current Act is the limited flexibility available to the Commissioner on receipt of a complaint. The grounds on which the Commissioner can decide to take no action on a complaint are limited (see below at 5.5), and the remaining options of referral to advocacy or investigation may not always be the most appropriate in the circumstances. The following discussion sets out my suggestions for increasing the options available when complaints are received to give the Commissioner a greater ability to achieve the stated purpose of the Act.

Currently, on receiving a complaint, the Commissioner may:

  • investigate to determine if there has been a breach of the Code
  • refer the matter to advocacy, or
  • take no action in accordance with section 37.

In some circumstances the Commissioner may also consult with and refer a complaint to the Ombudsman, the Privacy Commissioner or the Human Rights Commission where the matter is better dealt with by these bodies (s40).

5.4.1 Preliminary enquiries

It is often difficult to determine what action is the most appropriate one to take on the basis of information in the complaint alone. Often it is necessary to make a number of preliminary enquiries to determine the best course of action. For example, such enquiries are necessary to ascertain the consumer's views on a third party complaint, or to ascertain whether the other reasons set out in section 37 for not taking action are satisfied.

It would be helpful if the Commissioner's implicit ability to make such enquiries was made explicit in section 36. This would ensure there is no misunderstanding about the basis of such enquiries, and would assist in ensuring co-operation by parties with the Commissioner prior to the commencement of a formal investigation. Such enquiries may reveal there is no ground or need for commencing an investigation and could therefore save the parties some unnecessary anxiety. Formally notifying a provider that an investigation is to be commenced can often cause considerable stress.

I therefore recommend that the words "after making any preliminary enquiries which the Commissioner considers necessary" are included at the end of the introduction to section 36(1).

5.4.2 Further options on receipt of a complaint

In addition, I recommend that section 36 be amended to include further options allowing referral to mediation, to a health professional body, and to the service provider. My reasons for including these additional options are as follows:

Mediation

My experience is that some disputes lend themselves more to mediation than advocacy. Mediation involves attempting to resolve the matter through the facilitation of an impartial mediator. (A referral to advocacy, on the other hand, involves attempting to resolve the matter with the assistance of an advocate who takes the side of the consumer.)

Currently a mediation conference can only be called once an investigation is underway (s61). However, in many situations it is clear from the outset that the dispute lends itself to resolution through mediation, rather than advocacy. Examples include where the ongoing relationship between the parties requires a formalised agreement as to the future delivery of services, or where the parties have extensively attempted to resolve the complaint and all information has been provided to the Commissioner, or where advocacy has been unsuccessful in achieving resolution. With extensive information already being available to the Commissioner, it seems an unnecessary formality to have to commence an investigation in order to be able to access the option of mediation.

I therefore recommend that section 36 include the option of referral to mediation.

Referral to health professional bodies

At present the Commissioner's ability to refer complaints to the health professional bodies for investigation is limited. This is particularly so if the Commissioner wishes to maintain an independent oversight of the complaint, as the Act envisages. By way of summary, the following provisions are relevant to the professional bodies' ability to investigate complaints:

  • On receipt of a complaint involving a registered health professional the Commissioner has a discretion to notify the relevant professional body of the complaint (s38). Once notified by the Commissioner, the professional body is suspended from taking any disciplinary action until the Commissioner, or the Director of Proceedings, notifies it that no further action is to be taken by them under the Act (s39). Likewise, where the professional body receives a complaint directly and advises the Commissioner of its receipt, similar suspension provisions apply. This means that the professional body cannot investigate until the Commissioner decides to give up oversight of the complaint. The Commissioner was given the role of independently investigating complaints about registered health professionals as a result of questions arising from the health professional bodies' control over this process.
  • At the end of an investigation, where the Commissioner has found a breach of the Code and proposes to take further action in respect of the complaint, the health professional body must be notified (s44(2)(a)). Again, because of the suspension provision, the professional body cannot take action where the matter is still in the hands of the Commissioner. Where the Commissioner proposes to take no further action, there is a discretion to notify the health professional body (s44(2)(b)). My practice is always to do so when the complaint was originally referred by the professional body. Where I find no breach of the Code in respect of complaints made direct to me, my practice has been to not inform the professional body for the reasons set out at 5.7.
  • Where the Commissioner finds a breach of the Code, one of the options available under section 45 is to make a complaint to the professional body. However, where this occurs the professional body is obliged to investigate the matter a second time before it can lay disciplinary charges. To avoid a further investigation, it seems preferable to refer the matter to the Director of Proceedings, who can then decide to lay charges without the need for another investigation. The ability to complain under section 45 therefore tends to be used where, as a result of an investigation, I become concerned about an ancillary matter which I consider should be brought to the attention of the professional body.
  • In addition, matters involving issues of wider public interest may be referred to the professional bodies at any time under section 59(4). This contemplates the referral of complaints with a reasonable level of significance, where the professional body may be able to suspend a party or review matters of health or competence.

I consider there is scope for greater involvement of health professional bodies in the investigation of complaints. In particular, it would be useful if the Act gave the Commissioner a discretion to refer selected complaints to professional bodies for action on receipt, where the Commissioner considered this would be useful in the first instance. In such circumstances, to enable the Commissioner to maintain the independent 'watchdog' role envisaged by the Act, all such referrals should be accompanied by appropriate reporting back to the Commissioner, within a reasonable time, of the action taken. In this way the Commissioner would retain a discretion to commence an investigation where this was considered appropriate. There should also be an obligation for the professional body to consult with the Commissioner if it is contemplating disciplinary action. The complaint may raise issues, other than issues of standards of practice, which the Commissioner considers should be dealt with in such proceedings, for example issues of informed consent.

While consumers may be concerned that this option removes their right to an independent investigation, the option allows the Commissioner to maintain an independent watchdog focus rather than becoming inundated by a multitude of individual complaints. Further, this option leaves open the Commissioner's ability to review the outcome of referrals, essentially maintaining the Commissioner's independent oversight role.

An example of a complaint that might usefully be referred to a professional body for action is where a pharmacist mislabels or administers the wrong dosage of medication. While these are important matters and ones where providers must be accountable, they are also matters in which the professional body has a direct interest and responsibility in terms of ensuring accountability and prevention.

I therefore recommend that section 36 include the option of referring a complaint to the professional body, with the requirement that the professional body report back to the Commissioner within a reasonable time on the action taken, and consult with the Commissioner if disciplinary proceedings are contemplated.

Referral to the provider

Finally, preliminary enquiries sometimes reveal that a provider is well motivated to resolve a complaint which may never before have been brought to the provider's attention, for example because the consumer was unaware of his or her right under the Code to complain directly to the provider. Additionally, consumers sometimes do not wish the assistance of an advocate, and mediation may be unnecessary in the circumstances.

To deal with these situations, I recommend that section 36 include the option of referring the matter directly to the provider for resolution, with the requirement that the provider report back to the Commissioner within a reasonable time on any action taken to resolve the complaint. Such a report is necessary to allow the Commissioner to ensure the matter is resolved, any compliance issues are addressed and independent oversight is maintained. This option would enable providers to put their obligations under the Code and Act into practice - that is, attempt to resolve complaints directly.

5.5 Grounds on which Commissioner may decide to take no action on a complaint - s37

The Commissioner may decide to take no action or, as the case may require, no further action on a complaint, if in the Commissioner's opinion any of the reasons set out in section 37 are established.

Section 37(1) sets out a list of reasons that enable the Commissioner to decide not to take any action on a complaint. These include, for example, situations where the subject matter of the complaint is trivial, or the complaint is frivolous or vexatious, or where, because of the length of time that has elapsed between the incident and the making of the complaint, action by the Commissioner is not warranted. The reasons set out in section 37(1) can also be relied on by the Commissioner when deciding to take no further action on a complaint.

Section 37(2) allows the Commissioner to decide to take no further action on a complaint if, in the course of investigation, it appears to the Commissioner, having regard to all the circumstances of the case, that any further action is unnecessary or inappropriate.

Unlike section 37(1), the discretion in section 37(2) is limited to situations where an investigation is already underway. In a few cases - such as where the same complainant has previously made a series of similar complaints, or where the matter has already been to advocacy or to the provider and the provider has done everything reasonably possible to put things right with the consumer - the Commissioner might properly discern on receiving a complaint that it would not be an appropriate use of resources to commence an investigation. However, under the Act as it currently stands, the Commissioner cannot refuse to investigate outright unless one of the reasons set out in section 37(1) is established.

I recommend that section 37 be amended to allow greater discretion to decide to take no action on receipt of a complaint. This would complement the amendment to section 36 discussed above which would give the Commissioner wider options for action on receipt of a complaint. I recommend this be achieved by deleting reference to "in the course of an investigation" in section 37(2). This would give the Commissioner a discretion to take no further action on a complaint where it is considered unnecessary or inappropriate. This option would therefore be available where some action under the Act has already been taken, for example, where the matter has already been to advocacy, there are no public safety issues involved, and further action seems unnecessary given the time and resources already spent on the matter. The alternative is for the Commissioner to base a decision to take no further action on the ground specified in section 37(1) that the complaint is "trivial". While an outsider may view a complaint in this way, this is seldom true for the parties themselves and to rely on this ground may aggravate the situation.

5.6 Notification requirements - s 36

Once the Commissioner has decided what action to take on a complaint, the Act requires the Commissioner to advise the complainant and the provider of this procedure/action (s36(2)). This includes notification of a decision to take no action at all on a complaint.

While it will always be appropriate to inform the complainant of a decision that no action is to be taken on a complaint, I consider the requirement to inform the provider of this fact should be discretionary. For example, it may not be necessary to inform the provider if he or she does not already know of a complaint which has been assessed as trivial or vexatious. Even a letter notifying that no action is to be taken on a complaint can cause considerable anxiety for the provider and I would like to be able to exercise discretion in this regard. On the other hand, it can often be a useful educational tool to inform the provider of the complaint and let him or her know, in general terms, of the obligations under the Code, even where no action is to be taken on the specific complaint.

Allowing the Commissioner discretion in this regard would be consistent with section 37(3) which, unlike section 36(2), contemplates the complainant alone being informed of the decision to take no action on a complaint and the reasons for that decision. It would also bring the Act into line with the Human Rights Act and the Ombudsmen Act, both of which require notification to the complainant only where a decision is made to take no action on a complaint (see s76(3) of the Human Rights Act 1993 and s17(3) of the Ombudsmen Act 1975). The position under the Privacy Act is currently the same as that under the Health and Disability Commissioner Act, and the Privacy Commissioner has also recently recommended an amendment to the Privacy Act to bring it into line with other legislation.

I therefore recommend that section 36 be amended by adding a subsection which gives the Commissioner a discretion to decide not to notify the provider where the Commissioner decides to take no action on a complaint.

5.7 Notification of complaints to professional bodies - ss38 and 44

Some health professional bodies have suggested amendment to the discretion given to the Commissioner in section 38 to notify them of a complaint. They wish there to be mandatory notification of complaints to the professional bodies (in the same way that it is mandatory for the professional bodies to refer complaints to the Commissioner). A similar argument is made in respect of the Commissioner's discretion under section 44(2)(b) to inform the health professional body of the result of an investigation where the Commissioner intends to take no further action.

I do not agree with this suggestion. First, my experience is that not all complaints have substance. Some may be trivial or vexatious. It is unfair to inform professional bodies of complaints until they are substantiated. Where I detect a trend in complaints, or a series of complaints about the same provider, as a matter of practice I will usually inform the professional body. Secondly, under the Act, consumers are not compelled to raise their concerns with the provider before taking them to the Commissioner. It seems unfair for complaints to the Commissioner to be treated differently from complaints made directly to the provider, particularly when the matter may later be resolved between the parties. Finally, while I acknowledge the concern that a decision by the Commissioner to take no further action does not necessarily mean the professional body would do likewise, the Commissioner must, in the interests of consumers, always seek to ensure that appropriate ethical and practice standards are maintained and the Act has established consultation provisions for this purpose.

The situation involving notification by the Commissioner is quite different from that where complaints made to a professional body must be referred to the Commissioner - it is, after all, the Commissioner who now acts as an independent watchdog in the health and disability sector and who may investigate any health or disability service provider. To fulfil this role, the Commissioner must be advised of complaints received.

In summary I do not consider there is a need to change the current notification provisions.

5.8 Referral of a complaint to an advocate by the Commissioner - s42

One of the Commissioner's options for dealing with complaints is to refer the complaint to an advocate for the purpose of resolving the complaint by agreement between the parties concerned. This may occur either on receipt of a complaint (s36(b)) or at any time during an investigation (s42). Referrals made on receipt of a complaint are stipulated to be in accordance with section 42.

Where a matter is referred to an advocate by the Commissioner, the advocate is to "use his or her best endeavours to resolve the complaint by agreement between the parties concerned". By way of contrast, where an advocate receives a complaint directly from a consumer, the advocate's function is currently expressed as being "to represent or assist the person alleged to be aggrieved for the purposes of endeavouring to resolve the complaint by agreement between the parties concerned" (s30(h)).

From time to time advocates have expressed concern that the different wording may give rise to the impression that the advocate's role on referral from the Commissioner is that of mediation, ie, the impartial facilitation of resolution by agreement. However, I do not consider that the wording of section 42 gives rise to this implication. The advocate's role is always that of an advocate, regardless of whether the complaint comes to them directly or via the Commissioner.

Indeed, I consider the wording of section 42 is entirely appropriate in circumstances where I have already considered the complaint and deliberately referred it to an advocate for resolution. In such circumstances advocates should always use their best endeavours to assist in resolving the complaint. Furthermore, there may be circumstances where it is appropriate for an advocate, acting on referral from the Commissioner, to assist persons such as family members to resolve a complaint in the interest of the consumer. Although advocates usually only advocate on behalf of consumers, I wish to retain the flexibility which section 42 currently gives to assist in resolving selected complaints with as little formality as possible. A practical example is the situation where a consumer is happy with a service, but a family member complains. Often the family's complaint affects the consumer's ongoing wellbeing and it is in no-one's interest that this continues. In such circumstances it is both practical and constructive to refer the matter to an advocate. This has been successfully used in the past as a means of resolving complaints in respect of services for mental health and eating disorders.

5.9 Procedure after investigation - s45

Where at the conclusion of an investigation the Commissioner is of the opinion that there has been a breach of the Code, there are a number of options available including:

  • Reporting the opinion to the provider concerned and making such recommendations as the Commissioner thinks fit (s45(a))
  • Reporting the opinion, together with such recommendations as the Commissioner thinks fit, to any purchaser, health professional body or other appropriate person (s45(b))
  • Reporting to the Minister (s45(c))
  • Making a complaint to a health professional body in respect of any person (s45(d))
  • Assisting someone to make such a complaint (s45(e))
  • Referring the matter to the Director of Proceedings so that the Director may decide what, if any, proceedings should be taken (s45(f)).

These actions are expressed to be available only where the Commissioner is of the opinion that there has been a breach of the Code. However, the High Court in Nicholls v Health and Disability Commissioner [1997] NZAR 351 has made it clear that the Commissioner also has the ability to report the results of an investigation where there is no breach of the Code under the general functions in section 14. Section 14(1)(d) enables the Commissioner to make public statements and publish reports in relation to any matter affecting the rights of consumers. Furthermore, as far as the parties themselves are concerned, section 43 requires the Commissioner to notify the results of an investigation to the parties, whether or not there is a breach.

Section 45(d) and (e) provide for the making of complaints to a health professional body. A complaint by the Commissioner at this stage, i.e. at the end of an investigation, would require the professional body to conduct another investigation if it wished to pursue the possibility of disciplinary proceedings. On the other hand, a referral to the Director of Proceedings under section 45(f) enables the Director to lay whatever disciplinary charges he or she considers appropriate without the need for further investigation.

Section 45(d) will therefore have limited application. However, it is useful as situations may arise where an investigation of one provider raises concerns about another health professional. Likewise, the investigation of one complaint against a health professional may raise unrelated concerns about the professional's practice. In such cases it may be of considerable assistance to the Commissioner to complain to the health professional body, rather than commence a new investigation. For this reason I do not recommend any change to section 45(d), but note that the most useful option is for the Act to allow a referral to a professional body prior to an investigation, with reporting back to the Commissioner, as recommended under the discussion of section 36.

Section 45(e), on the other hand, is fundamentally different from all the Commissioner's other options and powers under the Act in that the Commissioner is expressly stated to take sides by assisting the consumer. To be consistent with the rest of the Act, I recommend section 45(e) be amended so that the option available is a referral to an advocate to assist the person concerned make a complaint to a health professional body.

5.10 Implementation of Commissioner's recommendations - s46

Where a recommendation is made under section 45, the Act enables the Commissioner to request the person to whom the recommendation is made to notify the steps the person proposes to take to give effect to the recommendation (s46(1)).

If, within a reasonable time after the recommendation is made, no action is taken which seems to the Commissioner to be adequate and appropriate, the Commissioner:

  • Shall, after considering any comments of the person concerned, inform the complainant (if any) of the Commissioner's recommendations and may make such comments on the matter as he or she thinks fit (s46(2)(a)); and
  • May, where the Commissioner considers it appropriate, report to the Minister as he or she thinks fit (s46(2)(b)).

As section 43 already provides that the Commissioner shall inform the parties of the result of an investigation and what further action, if any, the Commissioner proposes to take, the parties would already be informed of any recommendations made before an assessment is made under section 46 of whether adequate action has been taken in response to the recommendations. The recommendations referred to in section 46(2)(a) therefore implicitly refer to any further recommendations and further comments the Commissioner wishes to make as a result of the original recommendations not being met.

Furthermore, where recommendations are not met, I consider the Commissioner may exercise any of the remaining options in section 45 or section 14. Section 45 allows the Commissioner to do all or any of the actions listed, but leaves open the possibility that one action may be subsequent to another. For example, where a recommendation is not followed, the Commissioner may make a referral to the Director of Proceedings, or exercise any other action available under section 14. Any other interpretation would result in the Commissioner's processes being toothless, would defeat the purposes of the Act, and could also result in the Commissioner making more onerous recommendations initially, which would also be contrary to the Act's aim of resolution at the lowest appropriate level.

While I consider it implicit that the actions in section 45 are available in following up recommendations, I recommend this be explicitly clarified in section 46.

5.11 Functions of Director of Proceedings - s49

The Director of Proceedings is an independent statutory officer whose role is to decide what, if any, proceedings should be taken in respect of a matter which has been investigated and referred by the Commissioner. The main types of proceedings which can be taken are proceedings before the Complaints Review Tribunal and the health professional disciplinary bodies.

The Director of Proceedings is appointed by the Commissioner to independently undertake the functions laid down in the Act and is accountable to the Commissioner for the efficient, effective and economical management of the Director's activities.

5.11.1 Structure of provisions relating to Director of Proceedings

Unlike the provisions relating to advocacy, which are all contained in Part III of the Act, the provisions relating to the Director of Proceedings are not in a separate Part of the Act. Most of the provisions relating to the Director are contained in Part IV, with Part II containing the section providing for the appointment of the Director.

I recommend that all provisions relating to the Director of Proceedings, and to the action which may be taken by the Director, be grouped together in a separate part of the Act. This would create a clearer structure to the Act and emphasise the functional independence of the Commissioner and Director.

At the same time, I recommend that the sections be reordered into a logical sequence. For example, the section dealing with the appointment of the Director (currently section 15) should come first, followed by the section setting out the functions (section 49), then the section dealing with the Director's right to participate in disciplinary and other proceedings (currently section 47), etc. Section 48, which deals with the powers of the Commissioner, would therefore logically follow on after section 46.

5.11.2 Further right to be heard by the Director of Proceedings

I recommend that section 49(2), which requires a person to have an opportunity to be heard by the Director of Proceedings before a decision is made to institute proceedings against them, be amended to give the Director a discretion in this regard. By the time the matter reaches the Director for consideration, the person concerned has already had two opportunities to be heard by the Commissioner i.e. in response to the complaint after being notified of the investigation and in response to the provisional opinion. Further, if proceedings are brought, there is an additional right to be heard in the relevant tribunal before a final determination of the matter. I consider the current additional requirement in section 49(2) is unnecessary and can result in needless delay. This amendment would not preclude the Director from hearing a provider, but would give a discretion not to do so where the facts are clear.

5.12 Ability of consumers to bring direct action in Complaints Review Tribunal - s51

As discussed above, where a matter is referred to the Director of Proceedings by the Commissioner, one of the options available to the Director is civil action in the Complaints Review Tribunal (s50). This option is available both as an alternative, and in addition, to proceedings before a health professional disciplinary body. Unlike the professional disciplinary bodies, which determine matters of professional conduct and may impose a fine or make an order affecting a provider's ability to practice, the Complaints Review Tribunal can make a declaration that there has been a breach of the Code and, where appropriate, has the ability to grant a remedy to put things right for the consumer. This includes the payment of damages to the consumer.

In limited situations the consumer may also directly bring an action in the Complaints Review Tribunal, without the assistance or involvement of the Director of Proceedings. The circumstances in which this may occur are set out in section 51. This provides that the "aggrieved person" may bring proceedings in the Complaints Review Tribunal where he or she wishes to do so, and

  • the Director of Proceedings is of the opinion that the complaint does not have substance or that the matter ought not to be proceeded with (s51(a)), or
  • in a case where the Director of Proceedings would be entitled to bring proceedings, the Director of Proceedings agrees to the aggrieved person bringing proceedings, or declines to bring proceedings (s51(b)).

I consider this wording requires amendment. The section is based on an equivalent provision in the Privacy Act, but there is confusion due to differences between the two pieces of legislation. The reference to the Director of Proceedings in section 51(a) does not make sense in the context of the Health and Disability Commissioner Act. It is the Commissioner, not the Director of Proceedings, who investigates and forms an opinion on the substance of a complaint. The Director of Proceedings does not separately investigate and, as an independent statutory officer, has no automatic right to access the Commissioner's investigation file. The equivalent provision in the Privacy Act refers to the Privacy Commissioner or the Proceedings Commissioner being of the opinion that the complaint does not have substance. I have no knowledge of whether the wording in the Health and Disability Commissioner Act is a drafting error due to the late change to the legislation to introduce the role of Director of Proceedings, or whether this was an intentional move to ensure that only those matters which reach the point of being referred to the Director of Proceedings, and which are not actioned by the Director of Proceedings, can be taken before the Complaints Review Tribunal by the consumer. Certainly, this would have dramatically reduced the number of cases taken to the Tribunal at a time when the Tribunal had an extensive backlog.

As a result of this reference to the Director rather than the Commissioner in section 51(a), the consumer is unable to bring his or her own action in the Complaints Review Tribunal in situations where the Commissioner does not find a breach, or in circumstances where the Commissioner finds a breach but does not refer the complaint to the Director of Proceedings. Consumers can only bring their own action in the Complaints Review Tribunal where the Commissioner finds a breach and refers the matter to the Director of Proceedings, who decides not to take action. The circumstances under which a consumer can bring action directly in the Complaints Review Tribunal are therefore very limited.

I recommend that section 51(a) be amended to substitute reference to the Director of Proceedings for reference to the Commissioner, thereby enabling consumers, or someone authorised to act on their behalf, to take action before the Complaints Review Tribunal where the Commissioner considers the matter does not have substance, or ought not to be proceeded with (which includes situations where no action is taken, no breach of the Code is found, or a breach of the Code is found but no referral is made to the Director of Proceedings). This would bring the Act into line with other legislation giving access to the Complaints Review Tribunal and would provide another possibility of redress for consumers who are dissatisfied with the Commissioner's findings. I consider it inappropriate for the Commissioner to be a gatekeeper to this Tribunal. I also recommend that reference to "complaint" in section 51(a) be changed to "matter" to accommodate situations where an investigation is commenced on the Commissioner's own initiative, rather than on receipt of a complaint. While these changes may initially increase the number of complaints to the Complaints Review Tribunal, this should decrease as precedent is set.

As an alternative, at the very least, the consumer should be able to take direct action in the Complaints Review Tribunal where the Commissioner finds a breach of the Code but does not refer the matter to the Director of Proceedings. Both options are included in Appendix A, but my preference is for the broader right to access the Tribunal.

5.13 Remedies that may be sought - s52

While the Complaints Review Tribunal has a general power to award damages to a consumer, including compensatory damages (ss54 and 57), this power is limited by section 52(2) which provides:

(2) Where any person has suffered personal injury (within the meaning of the Accident Rehabilitation and Compensation Insurance Act 1992) covered by that Act, no damages (other than punitive damages in accordance with section 57 (1) (d) of this Act) arising directly or indirectly out of that personal injury -

(a) May be sought by or on behalf of that person in any proceedings under section 50 or section 51 of this Act:

(b) May be awarded to or for the benefit of that person in any such proceedings.

Punitive damages are defined in section 57(1)(d) as being damages in respect of "any action of the defendant that was in flagrant disregard of the rights of the aggrieved person." This is a very difficult test to meet.

The Complaints Review Tribunal has interpreted section 52(2) as meaning that if a person has any cover at all under the Accident Rehabilitation and Compensation Insurance Act, the Tribunal is precluded from awarding any form of compensatory damages. This would be so even if no payment, or only payment for part of the injury, is received from ACC in respect of the matter for which damages are sought.

I recommend that section 52(2) be removed and section 57 amended to ensure the Tribunal has the power to award damages whereby consumers recover total costs. This will only occur in circumstances where there has been a breach of the Code and where ACC payments do not provide full compensation. Suggested wording for the amended section is set out in Appendix A.

In the health and disability sector where personal injury often results when things go wrong, it is essential that meaningful remedies are available for consumers whose rights have been breached. While the Complaints Review Tribunal may order a provider to perform an act to redress any loss or damage to the consumer (54(1)(d)), for example fixing a faulty service, this remedy may be of little practical benefit. Where services of a personal nature are concerned, the consumer will often have little confidence in the provider's ability to put things right and may be unwilling for them to attempt to do so. The need for meaningful compensation to be awarded by the Complaints Review Tribunal therefore becomes even more essential.

The Health and Disability Commissioner Act is consumer legislation with the express purpose of protecting consumer rights. Leaving aside any broader concerns about the fairness of restricting a consumer's redress for loss or injury suffered as a result of a provider's negligence or incompetence, there is justification for adopting a modified approach to the general rules governing the award of damages under the Health and Disability Commissioner Act.

5.14 Powers of Complaints Review Tribunal - s54

In addition to the limitation on awarding damages discussed above, the Complaints Review Tribunal is also directed by section 54(5), in awarding remedies in respect of a registered health professional whose actions have already been the subject of disciplinary action, to have regard to the findings of that disciplinary body and any penalty imposed by it.

The purpose of disciplinary hearings and hearings before the Complaints Review Tribunal are quite different. The focus of disciplinary hearings is on the professional conduct of the provider. The penalties imposed reflect this. Fines may be paid to the professional body, or restrictions may be placed on the provider's ability to practice, but the consumer gains no direct benefit from the proceedings apart from the satisfaction of knowing that the same thing is unlikely to happen to someone else. The Complaints Review Tribunal, on the other hand, has a consumer focus. The basis of the Tribunal's assessment is the Code of Rights and the remedies available to it are intended to put things right for the consumer where there has been a breach of the Code.

Because of this different focus, I have reservations about including a provision in the Act which requires the Complaints Review Tribunal to have regard to the findings of the professional body. The Act is based on the premise that consumer rights are fundamental and I am concerned that reference to an assessment by the professional body of the conduct in question may potentially obfuscate the need to adopt a consumer centred approach in this forum.

Leaving aside this reservation, I interpret section 54(5) as it currently stands as ensuring the professional body's views as to the seriousness of the matter and the culpability of the professional are considered. This is made clear by the requirement that the Complaints Review Tribunal must consider the finding of the disciplinary body as well as any penalty. Therefore, where a professional body has found one of its members in breach of professional standards and imposed a penalty to reflect the gravity of this breach, the Complaints Review Tribunal must have regard to this when determining whether there has been a breach of professional standards under the Code and the remedy to be granted to the consumer for this breach. This interpretation is supported by the fact that section 54(5), unlike section 54(4), makes no mention of the fact that the purpose of having regard to the findings and penalty of the disciplinary body is for the determination of remedy.

I do not regard this section as meaning that where a provider has been found guilty and disciplined by the professional body (for example, by fine, suspension or striking off), the remedy awarded by the Complaints Review Tribunal should be reduced. Such a result would be counter to the aims of the Act.

The meaning of section 54(5) is currently the subject of an appeal to the High Court by the Director of Proceedings. Irrespective of the outcome of this appeal, I recommend that section 54(5) be removed. Despite the assistance that might sometimes be gained from having regard to the views of the professional body, I consider that, as a fundamental matter of principle, the outcome for consumers in the Tribunal should be kept distinct from the outcome in the professional forum.

5.15 Transfer of certain functions to the Human Rights Act

As discussed above, the Act confers distinct functions on the Director of Proceedings and Commissioner. These functions are performed by the Director and Commissioner independently of each other. However, confusion between these roles continues in the sector as a result of the fact that the Commissioner appoints the Director of Proceedings and has ultimate responsibility for the efficient, effective and economical management of the Director's activities. Further, the Director's role as prosecutor at health professional disciplinary bodies has led to a mistaken impression that the Commissioner's investigation is merely a conduit to these bodies. The Act and Code stand independently as consumer law and should be viewed as such.

In my view there are advantages in transferring provisions relating to the Director of Proceedings (including changes recommended in this discussion document) to the Proceedings Commissioner under the Human Rights Act and I recommend this occur. In particular, I consider that the following advantages would result:

  • greater consistency arising from all provisions relating to proceedings before the Complaints Review Tribunal being incorporated into one statute and exercisable by one body,
  • efficiencies from utilising the experience of the Proceedings Commissioner, who currently has responsibility for bringing proceedings before the Complaints Review Tribunal under both the Human Rights Act and Privacy Act,
  • a greater perception of independence between the Commissioner and the professional bodies, even if there is no legal change to the fact of this independence.

I recognise that this is a significant recommendation to change the legislation. It may also require the Commissioner undertaking responsibilities as a Human Rights Commissioner, as occurs with the Privacy Commissioner. Questions about the accountability of the Proceedings Commissioner while undertaking functions under the Health and Disability Commissioner Act may also arise and the recommendations would extend the functions of the Proceedings Commissioner to include action before the health professional bodies.

The Chief Human Rights Commissioner does not agree in principle with this recommendation. Particular effects on the Human Rights Commission would include:

  • the need to maintain in-house expertise on a new jurisdiction
  • training and resource costs
  • demand-driven complaints which the Commission could not control
  • increased litigation.

In my view, the overall cost to the taxpayer would remain the same regardless of where the proceedings function rests and the quality and consistency of proceedings would improve. I recognise and agree this would involve a transferral of funds to Vote:Justice to compensate for the additional responsibility.

Overall, I consider the advantages expressed above justify the amendment and I welcome your views on the matter.

At this stage I have not included drafting to accompany this recommendation in Appendix A as it would require a number of sections to be amended, including sections 2, 14(1)(f), 15, 39, 45(f), 47, 49 - 55, 57, 68 - 70. I will await feedback from the consultation before doing so.

5.16 Summary of recommendations

I recommend that:

Act 29

section 34 be amended to clarify that the advocates' role is to assist consumers and not to resolve complaints themselves

Act 30

the words "after making any preliminary enquiries which the Commissioner considers necessary" be included at the end of the introduction to section 36(1)

Act 31

section 36 be amended to include the option of referring a complaint to mediation

Act 32

section 36 be amended to include the option of referring a complaint to a professional body

Act 33

section 36 be amended to include the option of referring the matter directly to the provider for resolution

Act 34

reference to "in the course of an investigation" be removed from section 37(2) to allow the Commissioner a greater discretion to decide to take no further action on a complaint where it is considered unnecessary or appropriate

Act 35

section 36 be amended to give the Commissioner a discretion not to notify the provider where no action is taken on a complaint

Act 36

section 45(e) be amended so that the Commissioner may refer the matter to an advocate to assist the person make a complaint to a health professional body

Act 37

section 46 be amended to clarify that if the Commissioner's recommendations are not met the Commissioner may take further action under section 45

Act 38

all the provisions relating to the Director of Proceedings, and to the action which may be taken by the Director, be grouped together in a separate part of the Act, after Part IV

Act 39

section 49(2) be removed to give the Director of Proceedings a discretion to allow a person to have an opportunity to be heard before the Director makes a decision to institute proceedings

Act 40

reference to the "Director of Proceedings" in section 51(a) be changed to the "Commissioner", to enable consumers to have wider direct access to the Complaints Review Tribunal

Act 41

reference to "complaint" in section 51(a) be changed to "matter" to accommodate investigations commenced on the Commissioner's own initiative, rather than on receipt of a complaint

Act 42

section 52(2) be removed and section 57 amended to ensure the Tribunal has power to award damages whereby consumers recover total costs

Act 43

section 54(5), which requires the Complaints Review Tribunal to have regard to the findings of the professional body, be removed

Act 44

the functions and powers of the Director of Proceedings be transferred to the Proceedings Commissioner under the Human Rights Act.

 

6.0 PART V MISCELLANEOUS PROVISIONS

6.1 Overview

Sections 59 to 82 of the Act cover various miscellaneous matters relating to complaints and procedure, the calling of mediation conferences, protections and privileges, delegations, vicarious liability, offences, etc. Although placed in a part of the Act entitled 'Miscellaneous', these provisions are essential to the Act's effective operation.

Most of these provisions have not given rise to any difficulty. However, I wish to see some matters clarified. In addition, I am concerned that the absence of a specific provision protecting information obtained in the course of an investigation has impeded the Commissioner's ability to fulfil the Act's purpose.

6.2 Procedure - s59

Section 59 contains a number of important provisions enabling the Commissioner to regulate procedures as he or she thinks fit. This flexibility is essential if the Commissioner is to achieve the Act's stated purpose of "fair, simple, speedy and efficient resolution of complaints". In outline, section 59 provides as follows:

  • investigations may be in public or in private (s59(1))
  • the Commissioner may hear or obtain information from such persons as she thinks fit (s59(2)(a))
  • the Commissioner may make such enquiries as she thinks fit (s59(2)(b))
  • it shall not be necessary for the Commissioner to hold any hearing (s59(2)(c)
  • subject to the right to respond to a complaint and to adverse comment, no person shall be entitled as of right to be heard by the Commissioner (s59(3))
  • the Commissioner may at any time refer a matter to the appropriate person or authority where she considers it necessary or desirable in the public interest to do so (s59(4))
  • subject to the provisions of the Act, the Commissioner and every advocate may regulate their procedure as they think fit (s59(5)).

I discussed in the previous section the need for maximum flexibility in dealing with complaints to enable the purpose of the Act to be achieved within available funding. In particular, I have recommended further options for dealing with complaints on receipt, including referral to the appropriate health professional body. In addition, it would be useful for the Commissioner to refer complaints to appropriate agencies, including health professional bodies, during an investigation, while still retaining an overall watchdog role. While section 59(4) enables a referral to take place where the Commissioner considers it necessary or desirable in the public interest, the section contains no requirement for the person or authority to whom a referral is made to report back to the Commissioner on action taken. I recommend that section 59 be amended to give the Commissioner a discretion to require such reporting.

6.3 Duty to forward complaints - s60

Section 60 imposes a duty on the person in charge of a health care institution to forward any letter to the Commissioner which is written by or on behalf of a health consumer in that institution.

Many consumers to whom the Act and Code apply reside in institutions other than health care institutions, for example, prisons. Further, with the move away from health care institutions there has been a large increase in consumers who are in permanent residential care facilities, some of whom might fall outside the current definition of "health care institution" but who nevertheless need the assurance given by this section. The reference to "health care institution" is therefore potentially too narrow. I recommend the section be amended to refer to all providers. Further, the section should explicitly apply to disability consumers, not just health consumers.

I also recommend that as a consequence of this change, the definition of health care institution be removed from the interpretation section. All those referred to in the definition are included in the definition of 'provider' and the term is not used elsewhere in the Act.

6.4 Mediation conference - ss61 and 61A

Section 61 enables the Commissioner to call a mediation conference in respect of any matter that is the subject of an investigation for the purpose of endeavouring to resolve the matter by agreement between the parties. This section has already been discussed and I recommended that mediation be an option available immediately on receipt of a complaint (see suggested amendment to section 36 at 5.4.2). This would introduce a beneficial element of flexibility into the Act and reduce the current formality of having to commence an investigation before mediation is available.

As a corollary to my earlier recommendation, I further recommend that section 61(1) be amended by removing the words "that is the subject of an investigation by the Commissioner" to allow wider use of mediation as a means of resolving complaints.

In addition, I recommend the Act be amended to give the Commissioner a discretion to require providers to contribute to the cost of mediation (s61A). Under the Code providers are required "to facilitate the fair, simple, speedy and efficient resolution of complaints". In some cases where I call a mediation conference, the provider has taken insufficient steps to fulfil this obligation and it seems fair that a contribution to the cost of mediation is paid by them. There is nothing to stop providers themselves, at any stage, utilising mediation as a means of resolving complaints. The Commissioner could even suggest this under the general powers in the Act. However, from the consumer's point of view it may be preferable for this process to be under the control of the Commissioner and, where this is the case, I see no good reason why the provider should not contribute to the cost of resolving the matter.

6.5 Evidence - ss62, 63 and 64

Section 62 governs the collection of information by the Commissioner. It allows the Commissioner to require information or documents relating to a matter under investigation to be produced and, where necessary, to summon and examine persons under oath. Section 63 confers a number of protections and privileges on persons required to provide information to the Commissioner and section 64 covers situations where disclosure of certain information is not to be required by the Commissioner.

One issue that has arisen is the relationship of these information provisions to the Privacy Act. From time to time providers mistakenly argue that they do not have to produce information about consumers required by the Commissioner because it would be contrary to the Privacy Act. This is not so. Section 7 of the Privacy Act makes it clear that nothing in the Privacy Act prevents the disclosure of information where this is required by law. Section 62 is such a requirement. Furthermore, the High Court in Nicholls v Health and Disability Commissioner [1997] NZAR 351 has made it clear that the Privacy Act does not impose an obligation of non-disclosure so as to bring the situation within the privilege conferred by section 63.

While the operational problems that this misunderstanding has caused on a day to day basis have lessened as providers become more familiar with the Act and the powers of the Commissioner, I nevertheless recommend that Parliamentary Counsel review these provisions to see if they can be simplified and/or clarified.

6.6 Protection of information - s65A

Unlike many other pieces of legislation which confer an investigation function on an independent Commissioner/Ombudsman (for example the Privacy Act, the Official Information Act, the Ombudsmen Act and the Commerce Act), the Health and Disability Commissioner Act contains no provision which explicitly and unequivocally protects information obtained by the Commissioner during an investigation from release to those who request it.

Although I consider such protection is conferred by exceptions within both the Privacy Act and the Official Information Act, the failure to explicitly address the matter in the Health and Disability Commissioner Act has resulted in an excessive amount of time and resources being spent on addressing the issue whenever an information request is made.

The Commissioner should be in the same position in this regard as the other agencies mentioned above. Information obtained during an investigation under the Act is of equal sensitivity and in need of protection as that obtained by these other agencies. If I am unable to protect information received during an investigation, I do not consider I am able to fulfil my functions and meet the Act's purpose as Parliament intended. Much of this information is supplied in the strictest confidence, or only because I compel its production. I think it is inequitable that information not normally available becomes official information when it comes into the Commissioner's possession through the Act's coercive powers and may then become available to the public.

I therefore recommend the Act be amended to include a secrecy provision, along the lines of that in the Privacy Act, to explicitly protect information supplied to the Commissioner during an investigation from release. This new provision should follow section 65, which deals with various privileges available to the Commissioner, the advocates, and those engaged or employed in connection with the work of the Commissioner.

6.7 Adverse comment - s67

Section 67 ensures that any person against whom the Commissioner intends to make adverse comment in any report or recommendation

  • has a reasonable opportunity to be heard (s67(a)(i)), and
  • has a reasonable opportunity to make a written statement in answer to that adverse comment (s67(a)(ii)), and
  • may, if they require, have their response or a summary of it (whichever the Commissioner considers appropriate) included in or appended to the report or recommendation (s67(b)).

The right to respond to adverse comment is a fundamental right of administrative law. Its purpose is to ensure a fair outcome for the parties.

6.7.1 Adverse comment about a matter which has been investigated

During an investigation into a complaint, a provider has a number of opportunities to give input before I form an opinion that a breach of the Code has occurred. As a minimum, this includes the opportunity at the commencement of the investigation to respond to the complaint (as required by section 41), as well as the opportunity to respond to any adverse comment in the provisional opinion.

There has been some debate over the meaning of section 67, in particular section 67(a)(i). With respect to a provider being investigated, I consider the right to be heard is fulfilled during the investigation by the opportunity to respond to the complaint, and the right to make a written statement in answer to the adverse comment is fulfilled by the opportunity given to respond to the provisional opinion. I do not consider that section 67(a)(i) gives an additional right to an oral hearing in relation to adverse comment over and above the right to respond in writing to the provisional opinion. My interpretation is supported by the fact that section 67(a)(i), unlike section 67(a)(ii), makes no reference to the hearing being in relation to adverse comment. Nor does any other provision in the Act contemplate an oral hearing.

Practicalities also indicate that the right to an oral hearing, in addition to the right to submit a written response, is not contemplated by the Act. It seems far fetched to suppose that a piece of legislation with the aim of achieving a "fair, simple, speedy and efficient" resolution of complaints would confer a right to be heard in relation to the complaint, a right to an oral hearing in relation to adverse comment, an additional right to submit a written statement in answer to the adverse comment and to have that statement included or appended to the report, and, if the matter is referred to the Director of Proceedings, a further right to be heard before proceedings are initiated.

6.7.2 Adverse comment where the matter was not the subject of an investigation

Sometimes a report or recommendation may contain adverse comment about a person who is not the subject of an investigation and, in such a case, the opportunity to put one's side of the story under section 41 does not apply. Adverse comment may also be made about a matter not previously addressed with the provider under investigation. The matter in question may not be able to be investigated because it does not concern a breach of the Code, for example, comment about a provider's lack of co-operation with the investigation process. In both these situations, in fairness, there must be an opportunity to respond to adverse comment and, as of right, parties against whom such comment is made should be able to make a written statement in answer to that comment. For instance, in my report into Canterbury Health Ltd, adverse comment was made in respect of a number of parties not under investigation and the parties were able to provide a written statement in response.

6.7.3 Suggested amendment

While I understand the need to provide an opportunity to respond in writing to adverse comment, section 67(a)(i) should not be interpreted to duplicate the right to be heard already provided by section 41(b) and section 67(a)(ii). To remove any misconceptions about its application, I recommend that section 67(a)(i) be removed. A right to be heard in relation to adverse comment still remains and, consistent with the rest of the Act, it is a right to be heard in writing.

6.8 Second Schedule

Clause 2 of the Second Schedule authorises the Commissioner to appoint employees. Clause 2(3) provides:

"The number of persons that may be appointed under this clause, whether generally or in respect of any specified duties or class of duties, shall from time to time be determined by the Minister."

The power of the Minister to determine the number of employees of the Commissioner is inappropriate and outdated, given the financial accountability structure established by the Public Finance Act 1989 and the Health and Disability Commissioner Act itself.

6.9 Summary of Recommendations

I recommend that:

Act 45

section 59 be amended to give the Commissioner a discretion to require the person or authority to whom a referral is made to report back to the Commissioner on action taken

Act 46

section 60 be amended to refer to "provider" rather than "health care institution". Further, the section should relate to all consumers, not just health consumers

Act 47

section 61 be amended by removing the words "that is the subject of an investigation by the Commissioner", which would allow the Commissioner to call a mediation conference at any time, including on receipt of a complaint

Act 48

the Act be amended to give the Commissioner a discretion to require providers to contribute to the cost of mediation (section 61A)

Act 49

sections 62-64 regarding the collection and disclosure of information be simplified or clarified

Act 50

the Act be amended to include a secrecy provision (section 65A), along the lines of that in the Privacy Act, to protect information supplied to the Commissioner in the course of an investigation is protected from release

Act 51

section 67(a)(i) be removed to make it clear that the Act does not confer an additional right to be heard in relation to adverse comment in addition to the right which exists to make a written statement in answer to adverse comment

Act 52

Clause 2(3) of the Second Schedule be removed.

 

1.0 OVERVIEW

The Code of Health and Disability Services Consumers' Rights came into force as regulation on 1 July 1996. The rights contained in the Code apply to all consumers of health and disability services in New Zealand, and the duties and obligations it imposes likewise apply to all health and disability service providers. The Code is therefore an important means of ensuring the delivery of quality services throughout New Zealand. The content of the Code is governed by section 20 of the Act. Some things may not be included in the Code because section 20 does not enable them to be included. In my discussion of the Act I have canvassed a number of matters that people from time to time suggest should be included in the Code and you may find it helpful to refer to this discussion. The Code consists of six clauses.

Clause 1 confers the rights contained in the Code on consumers and establishes the duties and obligations of providers to comply with the Code. It also requires providers to inform consumers of their rights and enable them to exercise those rights.

Clause 2 details the ten rights of consumers and the duties of providers as follows:

Right 1 : the right to be treated with respect

Right 2 : the right to freedom from discrimination, coercion, harassment, and exploitation

Right 3 : the right to dignity and independence

Right 4 : the right to services of an appropriate standard

Right 5 : the right to effective communication

Right 6 : the right to be fully informed

Right 7 : the right to make an informed choice and give informed consent

Right 8 : the right to support

Right 9 : rights in respect of teaching or research

Right 10 : the right to complain

Clause 3 sets out provider compliance requirements and states that a provider is not in breach of the Code if the provider has taken reasonable actions in the circumstances to give effect to the Code. Where the rights cannot be met, the onus is on the provider to show that it was reasonable in the circumstances not to have done so. This means that compliance with the Code is situation dependent - each case must be considered on its own facts. Compliance is not an "all or nothing" matter. If circumstances are difficult, the obligation on the provider is still to take all reasonable steps to comply with the Code as much as possible in those circumstances.

Clause 4 sets out the definitions of certain words used in the Code.

Clause 5 notes that, in meeting the requirements of the Code, no provider is required to break any other New Zealand law, nor does the Code prevent a provider from doing an act authorised by such a law.

Clause 6 ensures that all existing rights outside of the regulation still apply.

The Code in its current form is the result of an extensive consultation process which began in March 1995. By July 1995, when I completed the Proposed Draft Code, more than 500 submissions had been received and dozens of meetings held with consumer and provider groups. The publication and extensive distribution of the Proposed Draft Code led to a further round of consultation. More than 400 further submissions were received and considered resulting in the Draft Code being presented to the Minister of Health at the end of October 1995.

Perhaps as a result of this extensive consultation, most of the provisions in the Code have worked very satisfactorily and from my point of view there is little need for amendment. Some early fears by providers have proved groundless and, as understanding of the Code has increased, so too has its general acceptance. As with most legislation, there are a few matters which could be improved on and I discuss these below.

However, I note that none of my recommendations for change to the Code are "showstoppers" in the sense of exposing fundamental matters of concern. There is an argument that no change at all should occur at present, thereby ensuring consistent application of the Code and utilising resources already spent for another three years. For example, consumers and providers are just beginning to understand the finer detail of the Code and, since its inception, over 150,000 copies have been distributed and are in circulation. I would be grateful for specific submissions on whether any change should occur at all at this stage. Change should not occur just for change's sake.

A full version of the proposed Code, incorporating my recommendations for amendment, is set out below at Appendix B.

2.0 RECOMMENDATIONS FOR CHANGE

2.1 Right to services that take into account the needs, values and beliefs of Maori - Right 1(3)

Right 1(3) provides that "every consumer has the right to be provided with services that take into account the needs, values, and beliefs of different cultural, religious, social, and ethnic groups, including the needs, values, and beliefs of Maori."

I recommend that Right 1(3) be amended to include specific reference to the status of Maori as tangata whenua in the Treaty of Waitangi. It remains my view that specific reference to the Treaty as the founding document of New Zealand will encourage Maori ownership and utilisation of the rights within the Code. This in turn should assist in improving the quality of services to Maori and, ultimately, Maori health status in New Zealand.

  • The Minister considered it was already clear that the Crown's policy direction for Maori health was to seek to improve Maori health status so in the future Maori will have the same opportunity to enjoy at least the same level of health as non-Maori. Section 8(e) (now section 8(f)) of the Health and Disability Services Act 1993 acknowledges the Crown's objective in relation to "the special needs of Maori and other particular communities or people for those services".
  • Secondly, the Minister was concerned that the Crown's Treaty duties in respect of health and disability services have yet to be determined by the courts or the Waitangi Tribunal. Accordingly, the reference to Maori as "tangata whenua in the Treaty of Waitangi" could create legal uncertainty as to the meaning of Right 1(3) in practice. In the Minister's view, it was desirable to avoid such uncertainty.

My experience has been that, despite the current wording of Right 1(3), Maori need additional encouragement to utilise their rights under the Code and the complaint processes of the Act. I consider that reference to the Treaty would give this encouragement and I would like to see further discussion and comment on this matter in the hope that my recommendation will now be reconsidered.

2.2 Right to information without asking - Right 6(1)

Right 6(1) provides that "every consumer has the right to the information that a reasonable consumer, in that consumer's circumstances, would expect to receive, including -

  1. An explanation of his or her condition; and

  2. An explanation of the options available, including an assessment of the expected risks, side effects, benefits, and costs of each option; and

  3. Advice of the estimated time within which the services will be provided; and

  4. Notification of any proposed participation in teaching or research, including whether the research requires and has received ethical approval; and

  5. Any other information required by legal, professional, ethical, and other relevant standards; and

  6. The results of tests; and

  7. The results of procedures."

This list is not exhaustive, but rather is indicative of the type of information that a consumer might expect to receive. In addition to providing this information, providers are expected to answer any questions asked of them honestly and accurately. The test for what information should be provided is therefore consumer oriented. It involves an assessment not only of what a 'reasonable consumer' would expect, but also of the circumstances of the individual consumer receiving services, and in so doing adopts the patient-centred standard set by the Australian and North American courts.

Consumers are entitled to the information specified in Right 6(1) without having to ask for it. However, while it is clear from a legal point of view that in the context of Right 6 this information must be given without asking, this has not always been clear to people reading the Code. I therefore recommend that Right 6(1) be amended to include explicit reference to the fact that the information specified should be made available without asking, in this way ensuring clarity for non-legal readers and users of the Code.

This recommendation was also in the draft Code which was tabled in Parliament in 1995 and was not approved by the Minister at that time. The Minister removed the words "without asking" because she considered it was clear from the context that the information was to be given without the need for a request by the consumer. The Minister confirmed that from a legal perspective the effect of this right remained the same, irrespective of whether the words "without asking" were included or not.

In light of my experience that it is not clear to everyone reading the Code that this information is to be given without the need for a request by the consumer, and of the fact that this recommendation makes no change to the legal effect of Right 6(1), I recommend this change be made. It is important that consumer law, such as the Code, is written in a way that is easily understood, not just by lawyers but by those using the regulation on a daily basis - providers and consumers.

2.3 Advance directive - Right 7(5)

Right 7(5) provides that "every consumer may use an advance directive in accordance with the common law."

"Advance directive" is defined in Clause 4 of the Code to mean "a written or oral directive -

a) By which a consumer makes a choice about a possible future health care procedure; and

b) That is intended to be effective only when he or she is not competent".

An advance directive is simply a consumer's advance use of his or her right to make a service choice. It enables consumers to give informed consent or to refuse services in anticipation of an occasion when they may not be able to do so. Accordingly, the issues relating to the validity of advance directives will be similar to those relating to informed consent to services given in the usual way. These include whether the consumer was competent to make the particular decision, free from undue influence, sufficiently informed, and intending the directive to apply in the particular circumstances.

2.3.1 Equal application to health and disability services consumers

Currently, advance directives are defined in relation to future health care procedures only. Under the Code an advance directive does not enable persons to make choices about future disability services, for example the type of rest home in which they wish to reside in the event of future incompetence as a result of Alzheimers. I recommend an amendment to the definition of 'advance directive' to enable persons to make choices about possible future health and disability services, rather than limiting such choices to health care procedures only.

The authority for this amendment comes from section 20(2)(a) of the Act, which enables the Commissioner to include in the Code any matter relating to the rights of disability services consumers which the Commissioner considers of particular importance to such consumers. There is no question that the ability to make choices about future disability services, like the ability to give informed consent to such services, is such a matter, and this should be reflected in the Code. This amendment is also consistent with the principle of equal protection of health and disability services consumers under the Code.

2.3.2 Advance directives to be in writing

Under the common law and the Code in its current form, advance directives can be executed both in writing and orally. However, it is sometimes difficult for providers to be confident about the validity of an oral advance directive. For purposes of the Code, it may be preferable for all advance directives to be executed in writing. There are obvious practical advantages to this. In particular, writing would ensure as far as possible that the consumer's wishes are understood and followed and would protect both consumers and providers by providing evidence that the legal and ethical requirements for applying an advance directive have been complied with. For example, having an advance directive in writing would help ensure that the information relied on by the consumer to make the particular choice is still sufficient for informed consent, and that the consumer intended the advance directive to be effective in the particular circumstances.

I therefore recommend that Right 7(5) and the definition of 'advance directive' be amended to require advance directives to be executed in writing for purposes of the Code. I recognise that this may appear to be a limitation on consumers' present rights and particularly welcome your comments and discussion on this proposal.

2.4 Consent in writing - Right 7(6)

Right 7(6) provides that "where informed consent to a health care procedure is required, it must be in writing if -

a) The consumer is to participate in any research; or

b) The procedure is experimental; or

c) The consumer will be under general anaesthetic; or

d) There is a significant risk of adverse effects on the consumer.

2.4.1 Reference to 'health care procedure'

Right 7(6) currently confers a right to give informed consent in writing only where certain health care procedures are carried out. It does not give this right in similar circumstances to people who receive disability services, for example, where a disability services consumer is to participate in research, other than research associated with a health care procedure. I therefore recommend that Right 7(6) be amended by replacing the reference to 'health care procedure' with reference to 'service', thereby ensuring its application to both health and disability services consumers. For similar reasons, the reference in Right 7(6)(b) to a 'procedure' should also be replaced by 'service'.

The authority for this amendment comes from section 20(2)(a) of the Act, which enables the Commissioner to include in the Code any matter relating to the rights of disability services consumers which the Commissioner considers of particular importance to such consumers. I consider that the right to provide informed consent in writing in these circumstances is such a matter and should be reflected in the Code. This amendment is also consistent with the principle of equal protection of health and disability services consumers under the Code.

2.4.2 Requirement for writing may be waived by the consumer

The current wording of Right 7(6), in particular the use of the word 'must', has given rise to confusion about the application of this right. Some providers view this provision as requiring them to obtain consent in writing regardless of the consumer's wishes. This may be desirable as a matter of administrative convenience, however it is clear that the Code is concerned with consumer rights.

Consumers may choose not to give consent in writing for a number of reasons. So long as informed consent is given, a refusal to give written consent should not be used as a basis for not providing service. In this type of situation, as with others, providers would be wise to record the fact of consent, together with the fact of the consumer's waiver of their right to give consent in writing, but should not consider the Code as a barrier to the provision of service.

While I do not recommend any specific change to the wording of Right 7(6) in this regard in my view consumers are able to choose to give written consent in these situations.

2.4.3 Written consent to research - Right 7(6)(a)

Since the Code became regulation a number of people have suggested that the provision for informed consent to be in writing if a consumer participates in research should be removed. The concern is expressed that this makes the undertaking of research unworkable in certain circumstances.

In my view this concern may be overstated. Clause 3 of the Code makes it clear that providers, including researchers, will not be in breach of the Code if they have taken reasonable actions in the circumstances to give effect to it. What is reasonable is assessed on a case by case basis. For example, there may be situations where obtaining written consent is culturally inappropriate and potentially in breach of Right 1(3). In such circumstances the obtaining of ethical approval for the research and the fact that it has a valuable public health objective are factors that may indicate the researcher acted reasonably in proceeding, even in the absence of written consent. In all cases the basic obligation to obtain informed consent remains.

Because of the flexibility already provided by Clause 3, I do not consider there is a need to remove Right 7(6)(a).

2.5 Consent to the storage, preservation or use of body parts or bodily substances - Right 7(10)

Right 7(10) provides that "any body parts or bodily substances removed or obtained in the course of a health care procedure may be stored, preserved, or utilised only with the informed consent of the consumer."

2.5.1 Whether consent should be required

I have received suggestions that this requirement be changed. Concern has been expressed that it makes pathology practice and research unworkable in many instances, as providers cannot know all possible future uses when obtaining consent at the time the body part or bodily substance is removed. It has also been suggested that obtaining consent may make certain research involving anonymous and unlinked samples impractical and/or scientifically invalid, for example, HIV surveillance by testing left over blood, or monitoring for signs of proteins linked to CJD by testing stored tonsils and appendix removed during surgery.

I do not agree that the requirement for consent in Right 7(10) should be changed. There is already sufficient flexibility in the Code to cater for difficult circumstances, such as where the consumer is no longer available or cannot be traced. Clause 3 ensures the provider is not in breach of the Code so long as reasonable action to obtain informed consent is taken.

It is entirely appropriate for a provider, who wishes to use a body part or bodily substance for a purpose different from that for which consent was initially obtained, to go back and obtain informed consent for any new use. Where there is a proposal to conduct research on stored samples and no donor consent has been given for the research, the researcher should take reasonable steps to trace the donors to obtain their informed consent. Where the samples have been stored unlinked and it is not possible for consent to be obtained, then the obtaining of ethical approval for the research and the fact that it has a valuable public health objective may well satisfy the requirement of provider compliance set out in Clause 3, although the possibility of further research should always be considered at the outset when the original consent for use is obtained. While ethical approval for research cannot prevent complaints being made to the Commissioner about the research, it will be one of a number of factors taken into account in determining whether the researcher acted reasonably in the circumstances.

Further, I consider it important that steps are taken to fulfil the obligation in Right 6(1)(f) to inform consumers of the results of any tests, including those undertaken as part of a research project. I believe that where samples can ultimately be linked back to a particular donor, and testing reveals that the donor in question is, for example, HIV positive, the donor should be given the opportunity to access that information.

Finally, like all other rights in the Code, Right 7(10) is subject to Clause 5, which provides that nothing in the Code requires a provider to breach any other enactment or prevents him or her from doing an act authorised by another enactment. For example, Right 7(10) would not be breached by a medical practitioner who, under the authority of the Transport Act, takes a blood specimen and sends it for blood alcohol analysis without consent.

2.5.2 Reference to 'health care procedure'

Right 7(10) currently refers to body parts or bodily substances removed or obtained in the course of a 'health care procedure'. Similarly, Right 7(9) which relates to decisions about the return or disposal of body parts or bodily substances also refers to a 'health care procedure'.

For the sake of consistency, I recommend that these references to 'health care procedure' be replaced by a generic reference to 'services' to ensure equal application to health and disability services. While the right may rarely be exercised in the disability context, this approach more readily accords with the scheme of the Code and is consistent with its use of generic definitions. The Code defines the term 'services' to mean health services or disability services, or both, and includes health care procedures within this definition.

2.6 Complaints - Right 10

Right 10 sets out a consumer's right to complain and the various requirements providers must follow when dealing with complaints. Consumer complaints are a valuable source of feedback for providers and it is essential that they are responded to appropriately to ensure service improvement. Right 10 gives providers the opportunity to resolve complaints directly with consumers, without the need for intervention by the Commissioner, and it is in providers' own interest that proper systems are put in place to facilitate resolution.

2.6.1 The appointment of a complaints co-ordinator

Some provider organisations have appointed a specific person within the organisation with prime responsibility for co-ordinating complaints. My experience is that where providers have appointed a complaints co-ordinator the complaints resolution process is much improved, with fewer complaints being referred to me or to advocates. For this reason, I consider Right 10 should provide for the appointment of a complaints co-ordinator by all service providers, but note that this co-ordinator must not interfere with the consumer's right to complain to, and receive a response from, the individual who actually provided the service.

This requirement is consistent with the approach of the Privacy Act, which provides for the appointment of privacy officers to undertake similar responsibilities. The recent review of the Privacy Act revealed that the appointment of privacy officers has been a successful means of easing compliance with that Act.

In the context of the Code, a variety of approaches could be taken to the appointment of a complaints co-ordinator depending on the size and style of the provider. In many instances the position would fit neatly with the position of privacy officer already appointed under the Privacy Act, or with the role of a risk manager. In sole practices, the sole practitioner could be the complaints co-ordinator.

I recommend that Right 10 be amended to provide for the appointment by all providers of a complaints co-ordinator, whose responsibilities would include the encouragement of compliance by the provider with the Act and Code, in particular, compliance with the complaints procedures specified in this Right.

2.6.2 Time frames for responding to complaints.

It has been suggested that the complaints procedure set out in Right 10 is too complex and needs simplifying. I have reviewed the procedure and recommend that the technical writing of the Code be more logically drafted. Appendix B includes a redrafted Right 10 in which the principles are consistent with the current Code, but the regulation is easier to follow.

2.7 Provider compliance - reasonable actions in the circumstances - Clause 3

Clause 3(1) provides that "a provider is not in breach of this Code if the provider has taken reasonable actions in the circumstances to give effect to the rights, and comply with the duties, in this Code."

Clause 3(3) provides that "the circumstances" means all the relevant circumstances, including the consumer's clinical circumstances and the provider's resource constraints.

Clause 3 makes it clear that application of the Code is situation dependent. There are occasions when compliance with the various consumer rights is difficult in the circumstances and the Code takes this into account. Many comments I receive indicate a misunderstanding of this fact. For example, it has been suggested that the Code's right to privacy is impractical in hospitals where there are several beds in one room, and that the right to an interpreter is impractical in remote rural areas. Clause 3 ensures that these types of difficulty are taken into account and, indeed, in the case of interpreters the Code explicitly states that the right applies "where necessary and reasonably practicable".

However, it should not be assumed that the Code will have no application in difficult circumstances. The provider must show that reasonable action was taken to meet the Code as much as possible in those circumstances. In the case of the hospital room with many beds, the use of screens and lowered voices may suffice. In the case of interpreters, the use of family members or friends may be sufficient to meet the Code in a remote rural area, while it would probably fail to do so in a large urban area such as Auckland. I have been promoting the establishment of an 0800 or 0900 telephone interpreting service by the Health Funding Authority to minimise costs and facilitate access to interpreters in remote areas.

While it is clear that the Code is satisfied where reasonable actions in the circumstances have been taken to meet its obligations, the definition given of "the circumstances" is of little help in interpreting and applying Clause 3. There is no doubt from the text of Clause 3(1) that "the circumstances" has this meaning. The definition is therefore redundant and I recommend it be deleted.

2.8 Definitions - Clause 4

2.8.1 'Consumer'

'Consumer' means a health consumer or a disability services consumer; and, for the purposes of rights 5, 6, 7(1), 7(7) to 7(10), and 10, includes a person entitled to give consent on behalf of that consumer.

Apart from the rights specified in this definition a 'consumer' means a health consumer or a disability services consumer and no one else. I consider that persons who are entitled to give consent on behalf of consumers should be entitled to all the rights in the Code, not just to Rights 5, 6, 7(1), 7(7) to 7(10), and 10. Such a person is essentially 'in the shoes' of the consumer and should be entitled to the full range of rights.

I therefore recommend that the list of specified rights in the definition of 'consumer' be removed, thereby extending the meaning of 'consumer' to a person entitled to give consent on the consumer's behalf for the purpose of all the rights in the Code.

 

3.0 SUMMARY OF RECOMMENDATIONS



I recommend that:

Code 1

Right 1(3) be amended to include reference to the status of Maori as tangata whenua in the Treaty of Waitangi

Code 2

Right 6(1) be amended to include explicit reference to the fact that the information should be made available 'without asking'

Code 3

the definition of 'advance directive' be amended to enable persons to make choices about possible future health and disability services, rather than limiting such choices to health care procedures only

Code 4

Right 7(5) and the definition of 'advance directive' be amended to require advance directives be executed in writing for the purposes of the Code

Code 5

Right 7(6) be amended by replacing references to 'health care procedure' and 'procedure' with reference to 'service', thereby ensuring its application to both health and disability services consumers

Code 6

references in Right 7(9) and 7(10) to 'health care procedure' be replaced by a generic reference to 'services' to ensure equal application to health and disability services

Code 7

Right 10 of the Code be amended to provide for the appointment by all providers of a complaints co-ordinator whose responsibilities would include the encouragement of compliance by the provider with the Act and Code, in particular, the complaints procedures specified in Right 10

Code 8

Right 10 be reworded to simplify the time frames for responding to complaint

Code 9

Clause 3(3) be deleted as the definition of "the circumstances" is of little help in interpreting and applying Clause 3

Code 10

the list of specified rights in the definition of 'consumer' in Clause 4 be removed, thereby extending the definition to a person entitled to give consent on the consumer's behalf for the purposes of all the rights in the Code.

Your views on the following would be appreciated:

Code 11

The Code should not be amended because, taken as a whole, the existing Rights are satisfactory.

 

APPENDIX A - Proposed Provisions in the Act

1.0 OVERVIEW

INTRODUCTION

For the sake of clarity and to assist understanding of my recommendations, I have set out suggested drafting for the recommended changes in the context of the existing provisions of the Act. The drafting anticipates acceptance of my recommendation for generic reference to 'consumers' and 'providers'. At this stage I have not included drafting for those recommendations which require a series of sections to be amended and will await feedback from the consultation before doing so.

To indicate suggested changes I have placed deleted text in italics and square brackets. Where I have inserted new text into an existing provision, or drafted a new provision, the new text is underlined.

PRELIMINARY PROVISIONS

2. Interpretation - In this Act, unless the context otherwise requires, -

"Consumer" means a health consumer or disability services consumer

"Provider" means a health care provider or disability services provider.

"Disability services" includes goods, services, and facilities-

(a) Provided to people with disabilities for their care or support or to promote their independence; or

(b) Provided for purposes related or incidental to the care or support of people with disabilities or to the promotion of the independence of such people; and

(c) Includes teaching and research in respect of people with disabilities

"Health services"

(a) Means

(i) Services to promote health:

(ii) Services to protect health:

(iii) Services to prevent disease or ill-health:

(iv) Treatment services:

(v) Nursing services:

(vi) Rehabilitative services:

(vii) Diagnostic services;

(viii) Health examination;

(ix) Health teaching;

(x) Health research; and

(b) Includes

(i) Psychotherapy and counselling services:

(ii) Contraception services and advice:

(iii) Fertility services:

(iv) Sterilisation services:

"Health consumer" includes any person [on or in respect of whom any health care procedure is carried out] to whom health services are provided:

"Teaching" includes training of providers.

"Informed consent", in relation to a [ health ] consumer to whom services are provided [ on or in respect of whom there is carried out any health care procedure ], means consent to that [ procedure ] service where that consent

(a) Is freely given, by the [ health ] consumer or, where applicable, by any person who is entitled to consent on that [ health ] consumer's behalf; and

(b) Is obtained in accordance with such requirements as are prescribed by the Code:

6A. Treaty of Waitangi - All persons exercising power and functions under this Act shall have regard to the principles of the Treaty of Waitangi.

PART I - HEALTH AND DISABILITY COMMISSIONER

9. Deputy Commissioner -

(1) There may from time to time be appointed a deputy to the person appointed as the Commissioner.

(2) The Deputy Commissioner shall be appointed by the Governor General on the recommendation of the Minister [ in the same manner as the Commissioner ], and sections 10 to 13 of this Act shall apply to the Deputy Commissioner in the same manner as they apply to the Commissioner.

(2A) Before making a recommendation under subsection (2), the Minister shall consult with the Commissioner.

(3) On the occurrence from any cause of a vacancy in the office of the Commissioner (whether by reason of death, resignation, or otherwise), and in the case of the absence from duty of the Commissioner (from whatever cause arising), and so long as any such vacancy or absence continues, the Deputy Commissioner shall have and may exercise all the powers, duties, and functions of the Commissioner under this Act or any other enactment, and shall be entitled to all the protections, privileges, and immunities of the Commissioner.

(4) The fact that the Deputy Commissioner exercises any power, duty, or function of the Commissioner shall be conclusive evidence of the Deputy Commissioner's authority to do so.

10. Qualifications for Appointment -

No person shall be recommended for appointment as the Commissioner unless, in the opinion of the Minister, the person is qualified for appointment, having regard to the following matters:

(a) The functions and powers of the Commissioner:

(b) The person's personal attributes:

(c) The person's knowledge of, or experience in,

(i) The New Zealand health care system:

(ii) The New Zealand disability services system:

(iii) The resolution of disputes, including mediation and arbitration:

(d) The person's understanding of the various needs of health consumers:

(e) The person's understanding of the various needs of disability services consumers:

(f) The person's knowledge of the Treaty of Waitangi and recognition of the aims and aspirations of Maori:

(g) The person's recognition of the social, cultural, and religious values of different cultural and ethnic groups in New Zealand.

14. Functions of Commissioner -

(1) The functions of the Commissioner are as follows:

(a) [ As a first priority, to prepare a draft Code of Health and Disability Services Consumers' Rights in accordance with section 19 of this Act: ]

(b) In accordance with section 21 of this Act, to review the Code and make to the Minister any recommendations for changes to the Code:

(c) To promote, by education and publicity, respect for and observance of the rights of [ health consumers and disability services ] consumers, and, in particular, to promote awareness, among [health consumers, disability services] consumers, [ health care providers, disability services ] providers, and purchasers, of the rights of [ health consumers and disability services ] consumers and of the means by which those rights may be enforced:

(d) To make public statements and publish reports in relation to any matter affecting the rights of [ health consumers or disability services ] consumers [ or both ], including statements and reports that promote an understanding of, and compliance with, the Code or the provisions of this Act:

(e) To investigate, on complaint or on the Commissioner's own initiative, any action that is or appears to the Commissioner to be in breach of the Code:

(f) To refer complaints, or investigations on the Commissioner's own initiative, to the Director of Proceedings for the purpose of deciding whether or not any further action should be taken in respect of any such breach or alleged breach:

(g) Subject to section 15(2) of this Act, to make recommendations to any appropriate person or authority in relation to the means by which complaints involving alleged breaches of the Code might be resolved and further breaches avoided:

(h) To prepare guidelines for the operation of advocacy services in accordance with section 28 of this Act:

(i) To make suggestions to any person in relation to any matter that concerns the need for, or the desirability of, action by that person in the interests of the rights of [ health consumers or disability services ] consumers [ or both ]:

(j) On the Commissioner's own initiative or at the request of the Minister, to advise the Minister on any matter relating to

(i) The rights of [ health consumers or disability services ] consumers [ or both ];

(ii) The administration of this Act:

(k) To report to the Minister from time to time on the need for, or desirability of, legislative, administrative, or other action to give protection or better protection to the rights of [ health consumers or disability services ] consumers [ or both ]:

(l) To receive and invite representations from members of the public and from any other body, organisation, or agency on matters relating to the rights of [ health consumers or disability services ] consumers [ or both ]:

(m) To gather such information as in the Commissioner's opinion will assist the Commissioner in carrying out the Commissioner's functions under this Act:

(n) To do anything incidental or conducive to the performance of any of the preceding functions:

(o) To perform such functions as the Commissioner is for the time being authorised to perform by the Minister, by written notice to the Commissioner after consultation with the Commissioner:

(p) To exercise and perform such other functions, powers, and duties as are conferred or imposed on the Commissioner by or under this Act or any other enactment.

(2) In performing his or her functions, the Commissioner shall

(a) Establish and maintain effective links with

(i) Representatives of [ health consumers, disability services ] consumers, [ health care providers, ] and [ disability services ] providers:

(ii) Other bodies and organisations (including community groups) concerned with health matters or matters relating to disabilities:

(b) Consult and co-operate with other agencies concerned with personal rights, including the Ombudsmen, the Human Rights Commission, the Race Relations Conciliator, the Commissioner for Children, the Privacy Commissioner, and the Director of Mental Health.

(3) Where a notice is given to the Commissioner under subsection (1) (o) of this section, the Minister shall, as soon as practicable after the giving of the notice, publish in the Gazette and lay before the House of Representatives a copy of the notice.

PART II - CODE OF HEALTH AND DISABILITY SERVICES CONSUMERS' RIGHTS

19. [Commissioner to prepare draft Code -

(1) As soon as practicable after the commencement of this section, the Commissioner shall, subject to sections 22 and 23 of this Act, prepare a draft Code of Health and Disability Services Consumers' Rights, and shall forward that draft to the Minister.

(2) Within 12 sitting days after a draft is received by the Minister in accordance with this section, the Minister shall lay a copy of the draft before the House of Representatives.

(3) Where, at the expiry of the period of 3 months beginning on the commencement of this Part of this Act, the Commissioner has not forwarded a draft Code to the Minister in accordance with subsection (1) of this section, the Commissioner shall, as soon as practicable after the expiry of that period, and then at intervals of not more than 3 months until a draft Code has been so forwarded, report to the Minister on the progress made in the preparation of the draft Code.]

20. Content of Cod e -

(1) A Code of Health and Disability Services Consumers' Rights prescribed by regulations made under section 74 (1) of this Act shall contain provisions relating to the following matters:

(a) The principle that, except where any enactment or any provision of the Code otherwise provides, no [ health care procedure ] services shall be carried out without informed consent:

(b) The duties and obligations of [ health care ] providers as they relate to the principle set out in paragraph (a) of this subsection:

(c) The rights of [ health consumers and disability services ] consumers, and the duties and obligations of [health care providers and disability services ] providers, as they relate to

(i) Matters of privacy (other than matters that may be the subject of a complaint under Part VII or Part VIII of the Privacy Act 1993 or matters to which Part X of that Act relates):

(ii) [ Health ] teaching and [ health ] research:

(iii) The provision of services that take into account the needs, values, and beliefs of different cultural, religious, social, and ethnic groups, including the needs, values, and beliefs of Maori and recognition of their status as tangata whenua in the Treaty of Waitangi:

(d) The duties of [ health care providers and disability services ] providers as they relate to the measures (including the provision of interpreters) necessary to enable [ health consumers and disability services ] consumers to communicate effectively with [ health care providers and disability services ] providers:

(e) The establishment and maintenance, by [ health care providers and disability services ] providers, of procedures for dealing with complaints against them by [ health consumers or disability services ] consumers, [ or both ,] and access by [ health consumers and disability services ] consumers to such procedures:

(f) The duties of [ health care providers and disability services ] providers to provide services of an appropriate standard.

(g) The duties of [ health care providers and disability services ] providers to provide services in a manner that respects the dignity and independence of the individual.

(2) Without limiting the generality of subsection (1) of this section, a Code of Health and Disability Services Consumers' Rights prescribed by regulations made under section 74 (1) of this Act may provide for

(a) Any matter relating to the rights of [ disability services ] consumers that the Commissioner considers is of particular importance to such consumers:

(b) Any matter incidental or ancillary to the rights of [ health consumers or disability services ] consumers[, or both ].

21. Review of Code -

(1) The Commissioner shall from time to time, as often as is necessary to ensure that a complete review of the Code is carried out at intervals of not more than [ 3 ] 5 years, review the Code and make recommendations to the Minister on what changes (if any) the Commissioner considers should be made to the Code.

(2) The Commissioner

(a) Shall whenever the Minister so requests; and

(b) May at any time, on the Commissioner's own initiative, review the Code, or any part of the Code, and make recommendations to the Minister on what changes (if any) the Commissioner considers should be made to the Code.

(3) Section 22 of this Act shall apply, with all necessary modifications, in relation to any recommendations made by the Commissioner under this section as if those recommendations were a draft Code to which section 19 (1) of this Act applies.

(4) Within 12 sitting days after receiving any recommendations from the Commissioner in accordance with subsection (1) or, as the case may be, subsection (2) of this section, the Minister shall lay a copy of those recommendations before the House of Representatives.

23. [Consultation on preparation and review of Code -

-Without limiting section 14 (2) of this Act, the Commissioner shall, in carrying out the requirements of sections 19 and 21 of this Act, consult with, and invite submissions from, such persons, bodies, organisations, and agencies, including

(a) Representatives of health consumers, disability services consumers, health care providers, disability services providers; and

(b) The Ombudsmen, the Human Rights Commission, the Race Relations Conciliator, the Privacy Commissioner, the Commissioner for Children, and the Director of Mental Health, as the Commissioner considers necessary to ensure that a wide range of views is available to the Commissioner to assist in the preparation and review of the Code of Health and Disability Services Consumers' Rights.]

PART III - HEALTH AND DISABILITY SERVICES CONSUMER ADVOCACY SERVICE

30. Functions of advocates -

An advocate shall have the following functions:

(a)To act as an advocate for [health consumers and disability services ] consumers in respect of the Code:

(b)To use his or her best endeavours to ensure that

(i) [ Health ] consumers to whom services are provided [ on or in respect of whom any health care procedure is carried out ], or are [ is ] proposed to be provided [ carried out ], by a [ health care ] provider[; and

(ii) Disability services consumers to whom disability services are provided, or are proposed to be provided, by a disability services provider ] are made aware of the Health and Disability Commissioner Act including the role of the Commissioner and the rights under the Code [ the provisions of the Code ]:

(c) Having regard to the needs, values, and beliefs of different cultural, religious, social, and ethnic groups, to provide information and assistance to [ health consumers, disability services ] consumers, and members of the public for the purposes of

(i) Promoting awareness of the rights of [ health consumers and of disability services ] consumers under the Code:

(ii) Promoting awareness of the procedures available for the resolution of complaints involving a possible breach of the Code:

(d) [ To provide to health consumers or, where applicable, persons entitled to consent on a health consumer's behalf such assistance as may be necessary to ensure

(i) That the health consumer's or, as the case may be, that person's consent to the carrying out of health care procedures is obtained; and

(ii) That that consent is informed consent]:

(e) [To promote, by education and publicity, an understanding of, and compliance with, the principle that, except where any enactment or any provision of the Code otherwise provides, no health care procedure shall be carried out without informed consent]:

(f) In respect of [health care providers and disability services] providers in the area that the advocate serves,

(i) To provide information on the Health and Disability Commissioner Act including the role of the Commissioner and the rights of [ health consumers and disability services ] consumers under the Code:

(ii) To promote awareness of advocacy services:

(iii) [To provide advice on the establishment and maintenance of procedures for providing proper information to health consumers in relation to health care procedures and for the obtaining of consent to such health care procedures:

(iv) To provide advice on the establishment and maintenance of procedures to ensure the protection of the rights of health consumers and of disability services consumers, including monitoring procedures and complaints procedures]:

(g) To receive complaints alleging that any action of any [ health care provider or disability services ] provider is or appears to be in breach of the Code and to assist the person alleged to be aggrieved for the purpose of endeavouring to resolve the complaint by agreement between the parties concerned:

(h) In respect of a complaint of the kind referred to in paragraph (g) of this section, to provide information on the Code, including complaints procedures required by the Code [represent or assist the person alleged to be aggrieved for the purposes of endeavouring to resolve the complaint by agreement between the parties concerned]:

(i) In respect of a complaint of the kind referred to in paragraph (g) of this section, to assist [ To provide assistance to ] persons who wish

[(i)] To pursue a complaint [ of the kind referred to in paragraph (g) of this section ] through any formal or informal procedures [ (including proceedings before a health professional body) ] that exist for resolving that complaint (including providing assistance in making a representation to the Health and Disability Commissioner and in proceedings before a health professional body):

[(ii) To make a representation to the Commissioner or any other body or person in respect of any matter that is or appears to be in breach of the Code]:

(j)To report regularly to the Director of Advocacy on the operation of advocacy services in the area served by the advocate:

(k) To report to the Commissioner [ from time to time ] on any matter relating to the rights of [ health consumers or disability services ] consumers [ or both ] (whether in relation to a particular [ health consumer or disability services ] consumer, or a group of [ health consumers or disability services ] consumers, or in relation to [ health consumers or disability services ] consumers generally) that, in the advocates opinion, should be drawn to the attention of the Commissioner, including matters of provider competence:

(l) To exercise and perform such other functions, powers, and duties as are conferred or imposed on advocates by or under this Act or any other enactment.

PART IV OF THE ACT - INVESTIGATION OF COMPLAINTS

Complaints

34. Advocate to refer unresolved complaint to Commissioner -

Where

(a) A complaint is made under this Part of this Act to an advocate; and

(b) The complaint is unable to be resolved [ advocate is unable to resolve the complaint ],

the advocate shall-

(c) Refer the complaint to the Commissioner, and in that case the complaint shall be deemed to be a complaint made to the Commissioner; and

(d) Inform the parties concerned of that referral and the reasons for it.

Investigations by Commissioner

36. Action on receipt of complaint

(1) On receiving a complaint under this Part of this Act, the Commissioner may do all or any of the following after making any preliminary enquiries which the Commissioner considers necessary:

(a) Investigate the complaint himself or herself:

(b) Refer the complaint to an advocate in accordance with section 42 of this Act for the purpose of resolving the complaint by agreement between the parties concerned:

(c) Decide, in accordance with section 37 of this Act, to take no action on the complaint.

(d)Call a mediation conference in accordance with section 61 of this Act:

(e)Refer the complaint to a health professional body,

(f)Refer the complaint to a provider for the purpose of resolving the complaint with the consumer,

(2)The Commissioner shall, as soon as practicable, advise the complainant and the [ health care provider or, as the case requires, the disability services ] provider to whom or to which the complaint relates of the procedure that the Commissioner proposes to adopt under subsection (1) of this section.

(3) Despite subsection (2), the Commissioner may in his or her discretion decide not to advise the provider where the Commissioner decides, in accordance with section 37, to take no action on the complaint.

(4)When the Commissioner refers a complaint to a health professional body or a provider under subsection (1)(e) or (1)(f) of this section, the Commissioner may require that the health professional body or provider, as the case may be, notify the Commissioner, within a time specified by the Commissioner, of the steps (if any) the health professional body or provider has taken in relation to the complaint.

(5) When the Commissioner refers a complaint to a health professional body under subsection (1)(e) of this section, the health professional body must consult with the Commissioner before commencing disciplinary proceedings.

37. Commissioner may decide to take no action on complaint -

(1) The Commissioner may in his or her discretion decide to take no action or, as the case may require, no further action, on any complaint, if, in the Commissioner's opinion,

(a) The length of time that has elapsed between the date when the subject-matter of the complaint arose and the date when the complaint was made is such that an investigation of the complaint is no longer practicable or desirable; or

(b) The subject-matter of the complaint is trivial; or

(c) The complaint is frivolous or vexatious or is not made in good faith; or

(d) The person alleged to be aggrieved does not desire that action be taken or, as the case may be, continued; or

(e) There is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to an Ombudsman, which it would be reasonable for the person alleged to be aggrieved to exercise.

(2) Notwithstanding anything in subsection (1) of this section, the Commissioner may in his or her discretion decide not to take any further action on a complaint if, [ in the course of the investigation of the complaint ], it appears to the Commissioner that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.

(3) In any case where the Commissioner decides to take no action, or no further action, on a complaint, the Commissioner shall inform the complainant of that decision and the reasons for it.

Proceedings of Commissioner

45. Procedure after investigation -

Where, after making any investigation under this Part of this Act, the Commissioner is of the opinion that any action that was the subject-matter of the investigation was in breach of the Code, the Commissioner may do all or any of the following:

(a) Report the Commissioner's opinion, with reasons, to the [ health care provider or, as the case requires, the disability services ] provider whose action was the subject- matter of the investigation, and may make such recommendations as the Commissioner thinks fit, including a recommendation that disciplinary proceedings be taken against any officer or employee or member of the [ health care provider or, as the case requires, of the disability services ] provider:

(b) Report the Commissioner's opinion, with reasons, together with such recommendations (if any) as the Commissioner thinks fit, to all or any of the following:

(i) Any purchaser:

(ii) Any health professional body:

(iii) Any other person that the Commissioner considers appropriate:

(c) Make such report to the Minister as the Commissioner thinks fit:

(d) Make a complaint to any health professional body in respect of any person:

(e) Where any person wishes to make such a complaint, refer the complaint to an advocate to assist that person to do so:

(f) Refer the matter to the Director of Proceedings for the purpose of deciding whether any one or more of the following actions should be taken:

(i) Any of the actions contemplated by section 47 of this Act:

(ii) The institution of proceedings under section 50 of this Act:

(iii) The institution of disciplinary proceedings.

46. Implementation of recommendations of Commissioner -

(1) Where, in accordance with section 45 (a) or (b) of this Act, the Commissioner makes any recommendation to any person, the Commissioner may request that person to notify the Commissioner, within a specified time, of the steps (if any) that the person proposes to take to give effect to that recommendation.

(2) If, within a reasonable time after a recommendation is made, no action is taken which seems to the Commissioner to be adequate and appropriate, the Commissioner

(a) Shall, after considering the comments (if any) of the person concerned, inform the complainant (if any) of the Commissioner's recommendations and may make such further comments or recommendations on the matter as the Commissioner thinks fit; and

(b) May, where the Commissioner considers it appropriate, transmit to the Minister such report on the matter as the Commissioner thinks fit; and

(c) May do all or any of the actions under section 45 that he or she has not already taken.

49. Functions of Director of Proceedings -

(1) The functions of the Director of Proceedings under this Part of this Act are

(a) To decide, on referral from the Commissioner pursuant to section 45 (f) of this Act,

(i) Whether to institute proceedings under section 50 of this Act, or disciplinary proceedings, or both, against a person against whom a complaint has been made under this Part of this Act or in respect of whom an investigation has been conducted under this Part of this Act; and

(ii) Whether to take any of the actions contemplated by section 47 of this Act; and

(b) If the Director of Proceedings decides that such proceedings should be instituted or, as the case may be, that any such action should be taken, to institute the proceedings or, as the case may be, to take the action.

(2) [The Director of Proceedings shall not

(a) Institute proceedings under section 50 of this Act or disciplinary proceedings, or both, against a person referred to in subsection (1) (a) (i) of this section; or

(b) Take any of the actions contemplated by section 47 of this Act in respect of any such person

unless the Director of Proceedings has given that person any opportunity to be heard.]

(3) In determining

(a) Whether or not to institute such proceedings or to take any such action; and

(b) The type of proceedings to be instituted or the type of action to be taken; and

(c) The order in which such proceedings are instituted or such action taken,

the Director of Proceedings-

(a) Shall have regard to the wishes of the complainant (if any) and the aggrieved person (if not the complainant) in relation to that matter; and

(e) Shall have regard to the need to ensure that appropriate disciplinary proceedings are instituted in any case where the public interest (whether for reasons of public health or public safety or for any other reason) so requires.

Proceedings Before Complaints Review Tribunal

51. Aggrieved person may bring proceedings before Tribunal -

Notwithstanding section 50(2) of this Act but subject to section 53 of this Act, the aggrieved person (whether personally or by any person authorised to act on his or her behalf) may bring proceedings before the Tribunal against a person to whom section 50 of this Act applies if he or she wishes to do so, and

(a) The Commissioner [ Director of Proceedings ] is of the opinion that the matter [ complaint ] does not have substance or that the matter ought not to be proceeded with; or

(b) In a case where the Director of Proceedings would be entitled to bring proceedings, the Director of Proceedings

(i) Agrees to the aggrieved person bringing proceedings; or

(ii) Declines to take proceedings.

Or

51. Aggrieved person may bring proceedings before Tribunal -

Notwithstanding section 50(2) of this Act but subject to section 53 of this Act, the aggrieved person (whether personally or by any person authorised to act on his or her behalf) may bring proceedings before the Tribunal against a person to whom section 50 of this Act applies if he or she wishes to do so, and

(a) The Commissioner [ Director of Proceedings] is of the opinion that the matter was in breach of the Code but declines to refer the matter to the Director of Proceedings [ complaint does not have substance or that the matter ought not to be proceeded with ]; or

(b) In a case where the Director of Proceedings would be entitled to bring proceedings, the Director of Proceedings

(i) Agrees to the aggrieved person bringing proceedings; or

(ii) Declines to take proceedings.

52. Remedies that may be sought -

(1) [ Subject to subsection (2) of this section ,] in any proceedings before the Tribunal brought by the Director of Proceedings or the aggrieved person, the plaintiff may seek such of the remedies described in section 54 of this Act as he or she thinks fit.

[(2) Where any person has suffered personal injury (within the meaning of the Accident Rehabilitation and Compensation Insurance Act 1992) covered by that Act, no damages (other than punitive damages in accordance with section 57 (1) (d) of this Act) arising directly or indirectly out of that personal injury

(a) May be sought by or on behalf of that person in any proceedings under section 50 or section 51 of this Act:

(b) May be awarded to or for the benefit of that person in any such proceedings.]

54. Powers of Complaints Review Tribunal -

(1) If, in any proceedings under section 50 or section 51 of this Act, the Tribunal is satisfied on the balance of probabilities that any action of the defendant is in breach of the Code, it may grant one or more of the following remedies:

(a) A declaration that the action of the defendant is in breach of the Code:

(b) An order restraining the defendant from continuing or repeating the breach, or from engaging in, or causing or permitting others to engage in, conduct of the same kind as that constituting the breach, or conduct of any similar kind specified in the order:

(c) Damages in accordance with section 57 of this Act:

(d) An order that the defendant perform any acts specified in the order with a view to redressing any loss or damage suffered by the aggrieved person as a result of the breach:

(e) Such other relief as the Tribunal thinks fit.

(2) In any proceedings under section 50 or section 51 of this Act, the Tribunal may award such costs against the defendant as it thinks fit, whether or not it makes any other order, or may award costs against the plaintiff, or may decline to award costs against either party.

(3) Where the Director of Proceedings is the plaintiff, any costs awarded against him or her shall be paid by the Commissioner, and the Commissioner shall not be entitled to be indemnified by the complainant or, as the case may be, the aggrieved person.

(4) It shall not be a defence to proceedings under section 50 or section 51 of this Act that the breach was unintentional or without negligence on the part of the defendant or any officer or employee or member of the defendant, but the Tribunal shall take the conduct of the defendant or, as the case may require, of any officer or employee or member of the defendant into account in deciding what, if any, remedy to grant.

(5) [In any proceedings under section 50 or section 51 of this Act in respect of any action of a registered health professional, the Tribunal shall, where that action has been the subject of disciplinary proceedings, have regard to the findings of the body before which those disciplinary proceedings were heard and to any penalty imposed on that registered health professional in those proceedings.]

57. Damages -

(1) [ Subject to section 52 (2) of this Act, ] in any proceedings under section 50 or section 51 of this Act, the Tribunal may award damages against the defendant for a breach of any of the provisions of the Code in respect of any one or more of the following:

(a) Pecuniary loss suffered as a result of, and expenses reasonably incurred by the aggrieved person for the purpose of, the transaction or activity out of which the breach arose:

(b) Loss of any benefit, whether or not of a monetary kind, which the aggrieved person might reasonably have been expected to obtain but for the breach:

(c) Humiliation, loss of dignity, and injury to the feelings of the aggrieved person:

(d) Any action of the defendant that was in flagrant disregard of the rights of the aggrieved person.

(1A) Where any person has suffered personal injury (within the meaning of the Accident Insurance Act 1998) covered by that Act the Tribunal shall take into account any entitlement of that person under the Accident Insurance Act in relation to that personal injury before granting an award of damages under subsection (1).

(2) Subject to subsections (3) to (5) of this section, the Commissioner shall pay damages recovered by the Director of Proceedings under this section to the aggrieved person on whose behalf the proceedings were brought.

(3) If the aggrieved person is an unmarried minor, the Commissioner may, in his or her discretion, pay the damages to the Public Trustee or to any person or trustee corporation acting as the manager of any property of that person.

(4) If the aggrieved person is a mentally disordered person within the meaning of section 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 whose property is not being managed under the Protection of Personal and Property Rights Act 1988, the Commissioner may, in his or her discretion, pay the damages to the Public Trustee.

(5) If the aggrieved person is a person whose property is being managed under the Protection of Personal and Property Rights Act 1988, the Commissioner shall ascertain whether the terms of the property order cover management of money received as damages and,

(a) If damages fall within the terms of the property order, the Commissioner shall pay the damages to the person or trustee corporation acting as the property manage; or

(b) If damages do not fall within the terms of the property order, the Commissioner may, in his or her discretion, pay the damages to the Public Trustee.

(6) Where money is paid to the Public Trustee under subsection (3) or subsection (4) or subsection (5) of this section,

(a) Section 12 of the Minors' Contracts Act 1969 shall apply in the case of an unmarried minor; and

(b) Subsections (4) and (6) to (9) of section 66 of the Public Trust Office Act 1957 shall, with any necessary modifications, apply in the case of a person referred to in subsection (4) or subsection 5) of this section

PART V MISCELLANEOUS PROVISIONS

59. Procedure -

(1) Every investigation under Part IV of this Act by the Commissioner may be conducted in public or in private.

(2) Subject of section 67 of this Act,

(a) The Commissioner may hear or obtain information from such persons as the Commissioner thinks fit, including, where the Commissioner considers that cultural matters are a factor relevant to a complaint or investigation, information from such persons as the Commissioner thinks have knowledge of or experience in those matters:

(b) The Commissioner may make such inquiries as the Commissioner thinks fit:

(c) It shall not be necessary for the Commissioner to hold any hearing.

(3) Subject to sections 41 (b) and 67 of this Act, no person shall be entitled as of right to be heard by the Commissioner.

(4) Without limiting any other provision of this Act, the Commissioner may, at any time, if the Commissioner considers that it is necessary or desirable in the public interest (whether for reasons of public health or public safety or for any other reason) that any matter be brought to the attention of any person or authority, refer the matter to the appropriate person or authority.

(5) Subject to the provisions of this Act, the Commissioner and every advocate may regulate his or her procedure in such manner as he or she thinks fit.

(6) When the Commissioner refers a matter under subsection (4) of this section, the Commissioner may require that the person or authority, as the case may be, notify the Commissioner, within a time specified by the Commissioner, of the steps (if any) the person or authority has taken in relation to the matter.

60. Duty to forward complaints -

Notwithstanding any provision in any enactment, where any letter appearing to be written by or on behalf of any [ health ] consumer receiving service from any provider [in any health care institution ] is addressed to the Commissioner or to an advocate, the provider [ person for the time being in charge of that institution ] shall immediately forward the letter, unopened, to the Commissioner or, as the case may require, that advocate.

61. Mediation conference -

(1) Where, in respect of any matter [ that is the subject of any investigation by the Commissioner, ] the Commissioner is of the opinion that it would be appropriate to do so, the Commissioner may call a conference of the parties concerned in an endeavour to resolve the matter by agreement between those parties.

(2) Any such conference may be called by a notice in writing signed by the Commissioner notifying the date, time, and place of the conference.

(3) In addition to the parties or their representatives, the Commissioner may also invite to attend the conference any other person whose attendance would the in the Commissioner's opinion be likely to assist in resolving the matter by agreement between the parties.

(4) There may be paid, out of the funds of the Commissioner,

(a) To each party or to the representatives of each party, to the number determined by the Commissioner as being necessary to enable that party to be adequately represented, attending any conference called under this section; and

(b) To any person (other than the Commissioner) attending any conference pursuant to subsection (3) of this section, fees, allowances, and expenses as if the parties or their representatives and those persons were witnesses in a Court, and, for that purpose,

(c) The provisions of any regulations in that behalf under the Summary Proceedings Act 1957 shall apply accordingly; and

(d) The Commissioner shall have the powers of a Court under any such regulations to fix or disallow, in whole or in part, or to increase, any amounts payable under the regulations.

(5) No evidence shall be admissible in any Court, or before any person acting judicially, of any information, statement, or admission disclosed or made to any person in the Course of a conference called under this section.

61A - Costs of mediation may be awarded to the Commissioner -

(1) Where a conference is called under section 61, the Commissioner may order a provider to pay any costs and expenses of and incidental to the conference.

(2) Any cost and expenses payable pursuant to subsection (1)-

a) Is recoverable as a debt due to the Commissioner; and

b) Must be paid to the Commissioner.

65A Commissioner and staff to maintain secrecy

(1) Every person to whom section 65 of this Act applies shall maintain secrecy in respect of all matters that come to that person's knowledge in the exercise of that person's functions under this Act.

(2) Not withstanding anything in subsection (1) of this section, the Commissioner may disclose such matters as in the Commissioner's opinion ought to be disclosed for the purposes of giving effect to this Act.

(3) Except where it is necessary to do so for the purposes of referring a matter to the Director of Proceedings pursuant to section 45 of this Act, the power conferred by subsection (2) of his section shall not extend to-

(a) Any matter that might prejudice-

(i) The security, defence, or international relations of New Zealand (including New Zealand's relations with the government of any other country of with any international organisation); or

(ii) Any interest protected by section 7 of the Official Information Act 1982; or

(iii) The prevention, investigation, or detection of offences; or

(b) Any matter that might involve the disclosure of the deliberations of Cabinet; or

(c) Any information, answer, document, or thing obtained by the Commissioner by reason only of compliance with a requirement made pursuant to section 64(2) of this Act.

67. Adverse comment -

The Commissioner shall not, in any report or recommendation made or published under any of sections 14, 16, 45, and 46 (2) (b) of this Act, make any comment that is adverse to any person unless-

(a) That person has been given a reasonable opportunity

[ (i) To be heard; and

(ii) To ] to make a written statement in answer to the adverse comment; and

(b) Where that person so requires, there is included in or appended to the report or recommendation either

(i) The written statement referred to in paragraph (a) [ (ii) ] of this section; or

(ii) A fair and accurate summary of that statement, whichever the Commissioner considers is more appropriate in the circumstances.

APPENDIX B - PROPOSED CODE OF HEALTH AND DISABILITY SERVICES CONSUMERS' RIGHTS

1.0 OVERVIEW

To indicate proposed changes to the Code I have placed deleted text in italics and square brackets. Where I have inserted new text into an existing provision, the new text is underlined.

1 Consumers have Rights and Providers have Duties:

1) Every consumer has the rights in this Code.

2) Every provider is subject to the duties in this Code.

3) Every provider must take action to -

a) Inform consumers of their rights; and

b) Enable consumers to exercise their rights.

2 Rights of Consumers and Duties of Providers:

The rights of consumers and the duties of providers under this Code are as follows:

RIGHT 1

Right to be Treated with Respect

1) Every consumer has the right to be treated with respect.

2) Every consumer has the right to have his or her privacy respected.

3) Every consumer has the right to be provided with services that take into account the needs, values, and beliefs of different cultural, religious, social, and ethnic groups, including the needs, values, and beliefs of Maori and recognition of their status as tangata whenua in the Treaty of Waitangi.

RIGHT 2

Right to Freedom from Discrimination, Coercion, Harassment, and Exploitation

Every consumer has the right to be free from discrimination, coercion, harassment, and sexual, financial or other exploitation.

RIGHT 3

Right to Dignity and Independence

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

RIGHT 4

Right to Services of an Appropriate Standard

1) Every consumer has the right to have services provided with reasonable care and skill.

2) Every consumer has the right to have services provided that comply with legal, professional, ethical, and other relevant standards.

3) Every consumer has the right to have services provided in a manner consistent with his or her needs.

4) Every consumer has the right to have services provided in a manner that minimises the potential harm to, and optimises the quality of life of, that consumer.

5) Every consumer has the right to co-operation among providers to ensure quality and continuity of services.

RIGHT 5

Right to Effective Communication

1) Every consumer has the right to effective communication in a form, language, and manner that enables the consumer to understand the information provided. Where necessary and reasonably practicable, this includes the right to a competent interpreter.

2) Every consumer has the right to an environment that enables both consumer and provider to communicate openly, honestly, and effectively.

RIGHT 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 without asking, including-

a) An explanation of his or her condition; and

b) An explanation of the options available, including an assessment of the expected risks, side effects, benefits, and costs of each option; and

c) Advice of the estimated time within which the services will be provided; and

d) Notification of any proposed participation in teaching or research, including whether the research requires and has received ethical approval; and

e) Any other information required by legal, professional, ethical, and other relevant standards; and

f) The results of tests; and

g) The results of procedures.

2) Before making a choice or giving consent, every consumer has the right to the information that a reasonable consumer, in that consumer's circumstances, needs to make an informed choice or give informed consent.

3) Every consumer has the right to honest and accurate answers to questions relating to services, including questions about -

a) The identity and qualifications of the provider; and

b) The recommendation of the provider; and

c) How to obtain an opinion from another provider; and

d) The results of research.

4) Every consumer has the right to receive, on request, a written summary of information provided.

RIGHT 7

Right to Make an Informed Choice and Give Informed Consent

1) Services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent, except where any enactment, or the common law, or any other provision of this Code provides otherwise.

2) Every consumer must be presumed competent to make an informed choice and give informed consent, unless there are reasonable grounds for believing that the consumer is not competent.

3) Where a consumer has diminished competence, that consumer retains the right to make informed choices and give informed consent, to the extent appropriate to his or her level of competence.

4) Where a consumer is not competent to make an informed choice and give informed consent, and no person entitled to consent on behalf of the consumer is available, the provider may provide services where -

a) It is in the best interests of the consumer; and

b) Reasonable steps have been taken to ascertain the views of the consumer; and

c) Either, -

i. If the consumer's views have been ascertained, and having regard to those views, the provider believes, on reasonable grounds, that the provision of the services is consistent with the informed choice the consumer would make if he or she were competent; or

ii. If the consumer's views have not been ascertained, the provider takes into account the views of other suitable persons who are interested in the welfare of the consumer and available to advise the provider.

5) Every consumer may use an advance directive [ in accordance with the common law ].

6) Where informed consent to a service [ health care procedure ] is required, it must be in writing if -

a) The consumer is to participate in any research; or

b) The [procedure] service is experimental; or

c) The consumer will be under general anaesthetic; or

d) There is a significant risk of adverse effects on the consumer.

7) Every consumer has the right to refuse services and to withdraw consent to services.

8) Every consumer has the right to express a preference as to who will provide services and have that preference met where practicable.

9) Every consumer has the right to make a decision about the return or disposal of any body parts or bodily substances removed or obtained in the course of a service [ health care procedure ].

10) Any body parts or bodily substances removed or obtained in the course of a service [health care procedure ] may be stored, preserved, or utilised only with the informed consent of the consumer.

RIGHT 8

Right to Support

Every consumer has the right to have one or more support persons of his or her choice present, except where safety may be compromised or another consumer's rights may be unreasonably infringed.

RIGHT 9

Rights in Respect of Teaching or Research

The rights in this Code extend to those occasions when a consumer is participating in, or it is proposed that a consumer participate in, teaching or research.

RIGHT 10

Right to Complain

1) Every consumer has the right to complain about a provider in any form appropriate to the consumer.

2) Every consumer may make a complaint to -

a) The individual or individuals who provided the services complained of; and

b) Any person authorised to receive complaints about that provider; and

c) Any other appropriate person, including -

i. An independent advocate provided under the Health and Disability Commissioner Act 1994; and

ii. The Health and Disability Commissioner.

3) Every provider must facilitate the fair, simple, speedy, and efficient resolution of complaints.

4) [ Every provider must inform a consumer about progress on the consumer's complaint at intervals of not more than 1 month. ]

Every provider, unless an employee of a provider, must have a complaints co-ordinator whose functions shall include the encouragement of compliance by the provider with the Act and Code and, in particular, the complaints procedures specified in this Right.

5) Every provider must comply with all the other relevant rights in this Code when dealing with complaints.

6) [Every provider, unless an employee of a provider, must have a complaints procedure that ensures that -

a) The complaint is acknowledged in writing within 5 working days of receipt, unless it has been resolved to the satisfaction of the consumer within that period; and

b) The consumer is informed of any relevant internal and external complaints procedures, including the availability of -

i. Independent advocates provided under the Health and Disability Commissioner Act 1994; and

ii. The Health and Disability Commissioner; and

c) The consumer's complaint and the actions of the provider regarding that complaint are documented; and

d) The consumer receives all information held by the provider that is or may be relevant to the complaint.

7) Within 10 working days of giving written acknowledgement of a complaint, the provider must, -

a) Decide whether the provider -

i. Accepts that the complaint is justified; or

ii. Does not accept that the complaint is justified; or

b) If it decides that more time is needed to investigate the complaint, -

i. Determine how much additional time is needed; and

ii. If that additional time is more than 20 working days, inform the consumer of that determination and of the reasons for it.

8) As soon as practicable after a provider decides whether or not it accepts that a complaint is justified, the provider must inform the consumer of -

i. The reasons for the decision; and

ii. Any actions the provider proposes to take; and

iii. Any appeal procedure the provider has in place.]

6) Every provider, unless an employee of a provider, must have a complaints procedure that ensures that -

a) The consumer is informed of any relevant internal and external complaints procedures, including the availability of -

i. Independent advocates provided under the Health and Disability Commissioner Act 1994; and

ii. The Health and Disability Commissioner; and

b) The consumer's complaint and the actions of the provider regarding that complaint are documented; and

c) The consumer receives all information held by the provider that is or may be relevant to the complaint.

7) Every provider's complaint procedure must ensure that

a) The complaint is acknowledged in writing within 5 working days of receipt, unless it has been resolved to the satisfaction of the consumer within that period; and

b) If the complaint is not resolved to the satisfaction of the consumer within 5 working days of receipt, the provider must complete an investigation of the complaint and notify the consumer within 10 working days of giving written acknowledgement of the complaint, and

c) If the provider is unable to complete the investigation within 10 working days, the provider must determine how much additional time is needed; and inform the consumer of that determination and of the reasons for it, and

d) In all instances the provider must inform a consumer about progress on the consumer's complaint at intervals of not more than 1 month

8) Every provider's complaint procedure must ensure that at the end of any investigation the consumer is informed of-

a) The outcome of the investigation; and

b) Any actions the provider proposes to take; and

c) Any appeal procedure the provider has in place; and

d) The right to complain to the Health and Disability Commissioner.

3 Provider Compliance

1) A provider is not in breach of this Code if the provider has taken reasonable actions in the circumstances to give effect to the rights, and comply with the duties, in this Code.

2) The onus is on the provider to prove that it took reasonable actions.

3) [For the purposes of this clause, "the circumstances" means all the relevant circumstances, including the consumer's clinical circumstances and the provider's resource constraints.]

4 Definitions

In this Code, unless the context otherwise requires, -

"Advance directive" means a written [ or oral ] directive -

a) By which a consumer makes a choice about a possible future service [ health care procedure ]; and

b) That is intended to be effective only when he or she is not competent:

"Choice" means a decision -

a) To receive services:

b) To refuse services:

c) To withdraw consent to services:

"Consumer" means a health consumer or a disability services consumer; and [, for the purposes of rights 5, 6, 7(1), 7(7) to 7(10), and 10, ] includes a person entitled to give consent on behalf of that consumer:

"Discrimination" means discrimination that is unlawful by virtue of Part II of the Human Rights Act 1993:

"Duties" includes duties and obligations corresponding to the rights in this Code:

"Exploitation" includes any abuse of a position of trust, breach of a fiduciary duty, or exercise of undue influence:

"Optimise the quality of life" means to take a holistic view of the needs of the consumer in order to achieve the best possible outcome in the circumstances:

"Privacy" means all matters of privacy in respect of a consumer, other than matters of privacy that may be the subject of a complaint under Part VII or Part VIII of the Privacy Act 1993 or matters to which Part X of that Act relates:

"Provider" means a health care provider or disability services provider:

"Research" means health research or disability research:

"Rights" includes rights corresponding to the duties in this Code:

"Services" means health services, or disability services, or both; and includes health care procedures:

"Teaching" includes training of providers.

5 Other Enactments

Nothing in this Code requires a provider to act in breach of any duty or obligation imposed by any enactment or prevents a provider doing an act authorised by any enactment.

6 Other Rights Not Affected

An existing right is not overridden or restricted simply because the right is not included in this Code or is included only in part.

 

 





 



Act 10

the application of the Public Finance Act be modified to allow the Commissioner to put a case for funding directly to Treasury and relevant Ministers

Act 11

section 9 be amended to require the Minister to consult with the Commissioner in recommending the appointment of a Deputy by the Governor General

Act 12

section 10(f) be amended to include reference to the Treaty of Waitangi

Act 13

the Commissioner's function in s14(1)(a) to prepare a draft Code be removed.

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