Names have been removed to protect privacy. Identifying letters are assigned in alphabetical order and bear no relationship to the person’s actual name. 

Introduction

1. This report is the final opinion of Dr Vanessa Caldwell, Deputy Health and Disability Commissioner, and is made in accordance with the power delegated to her by the Health and Disability Commissioner (HDC).
   
   
2. The report discusses the care provided to Ms B by Health New Zealand │ Te Whatu Ora Capital, Coast & Hutt Valley (Health NZ).[1]
   
   
3. Ms B was exposed in utero to thalidomide, a sedative marketed for morning sickness in the late 1950s and early 1960s and later found to cause severe birth defects. As a result, she has had profound hearing loss since birth.
   
   
4. First, the report examines the services provided to Ms B from 2010 to 2024 in relation to obtaining a hearing aid and prosthetic left ear. Ms B said that, throughout this time, she received differing information on whether she was eligible for full funding for these.
   
   
5. Second, the report examines Health NZ’s engagement with HDC’s complaints process after Ms B’s complaint to HDC.
   
   
6. The following issues were identified for investigation:

• • Whether the care provided to Ms B by Health NZ from 2010 to 2024 was appropriate.

• • Whether, following receipt of Ms B’s complaint, Health NZ complied with Right 10(3) of the Code of Health and Disability Services Consumers’ Rights.
    
    

7. The parties directly involved in the investigation were:

Ms B                                                                Consumer

Health NZ Capital, Coast & Hutt Valley          Provider/district

8. Further information was received from Whaikaha – Ministry of Disabled People.
   
   

Events leading up to complaint

Background

9. Severity of hearing loss is described in terms of mild, moderate, severe, and profound, with profound being the highest level.
   
   
10. Ms B has profound hearing loss in her left ear.[2] She was exposed to thalidomide in utero and was born with paralysis to the left side of her face, a partial left ear lobe, and no left ear or ear canal. She describes herself as having had 50% hearing loss all her life, and she lipreads when necessary.
    
    
11. Ms B said that, from the 1960s to the 1980s, she underwent multiple unsuccessful procedures to reconstruct her ear.

Funding availability

Hearing aids

12. Details of the criteria for the different levels of funding available from 2010 to 2024 are available in Appendix A. In summary, the primary criteria for eligibility for the hearing aid funding scheme include ‘significant[3] hearing loss since childhood.’ The criteria have remained the same since 2012.
    
    
13. In 2016, the Hearing Aid Funding Scheme was updated to allow patients requiring bone anchored hearing aids (BAHA) to receive funding for the sound processor component.[4] This funding was accessed through an audiologist or audiometrist in a public hospital and meant that the Ministry of Health | Manatū Hauora contributed to the cost of the sound processor, which could either be attached to a surgically implanted abutment or worn on a headband. When processed via Health NZ, patients generally paid nothing other than possible fitting fees and batteries. Appendix A outlines the hearing aid funding and subsidies in 2007 and changes made in 2011.

Ear prostheses

14. Funding for prostheses was available under certain eligibility criteria within the district over this period. Patients who had lost an ear, nose, or eye due to a tumour or cancer would have a prosthesis provided but be required to pay laboratory costs. Patients who had lost an ear for other reasons (as had Ms B) were ineligible for this funding and were required to pay in full for the preparation of the prosthetic and the device itself.

Discussions and preparatory surgeries for hearing aid and prosthetic ear from 2010 to 2013

15. In 2010, Ms B saw Mr A, clinical dental and maxillofacial technician at a local dental clinic, about reconstruction of her earlobe (ie, a prosthetic ear).[5] According to Ms B, Mr A advised her that she could get a prosthetic ear.
    
    
16. Ms B said Mr A referred her to Hutt Hospital for the prosthetic ear and made a referral to the Audiology Department at Wellington Hospital to see Dr C, an ear, nose and throat surgeon.

Initial reviews by Dr E, Mr G, Mr H, and Dr C

17. On 11 August 2010, Ms B saw Dr E, a plastic and reconstructive surgeon, who assessed her suitability for a prosthetic ear. The clinic letter from this appointment to Mr A acknowledged his referral for an opinion about Ms B’s left-sided microtia.[6] The letter also states that it would be reasonable to offer an ear prosthesis and that Dr E had arranged a CT scan to identify the underlying bony anatomy and where implants could be placed.
    
    
18. In her letter of 12 October 2016 to the Minister, Ms B says Mr A referred her to an audiologist (Dr C) and told her she could get a prosthetic ear. Ms B said that at the appointment in the Audiology department in Wellington Hospital with Dr C (date unknown)[7], she was told that there ‘was funding to get a BAHA’ should she choose to have a BAHA.
    
    
19. As part of her recollection of events, Ms B told HDC that, at the appointment with Dr C (date unknown[8]), she was told there was funding to get a BAHA’ should she choose to have one. She also stated that she questioned the matter of funding at the time because she had previously worked with a child who was seeking funding for a cochlear implant and wanted to ensure her decision to have a BAHA and prosthetic ear would not affect any child’s access to funding. She stated that she was assured that her decision to obtain hearing aids would not affect funding availability for any child requiring similar support.
    
    
20. Health NZ did not provide comment on the discussions held at these appointments, noting that the staff involved were no longer employed at the organisation.

Handover of care to Dr D

21. On 9 March 2011, Dr E wrote to Dr C, indicating that oral and maxillofacial surgeon Dr D would take over Ms B’s care and liaise with Mr A about the placement of implants for a prosthetic ear reconstruction.
    
    
22. On 18 July 2011, Ms B saw Dr D for his assessment for a prosthetic ear. Dr D’s clinic letter of the same date to Ms B’s General Practitioner (GP), Dr F, states that – on examination that day and in conjunction with the CT scan that Dr E had arranged – Dr D considered that Ms B would be an excellent candidate for an implant-supported left ear prosthesis. Dr D’s letter stated:

‘We also talked about the opportunity of placing a bone anchored hearing aid (BAHA) implant behind the prosthetic ear and this is possible at the same time, although the funding for the sound processor that attaches to the implant does not look to be available through the hospital, and [Ms B] would have to fund this part of her treatment.’

23. Dr D’s letter also stated that there was a plan for Ms B to see Mr G, a new maxillofacial prosthetist in Lower Hutt working under the supervision of Mr H, a maxillofacial prosthetist based at Waikato Hospital and also working at Hutt Hospital.
    
    
24. Dr D’s clinic letter was addressed to Ms B’s GP and copied to Mr G, Dr C, Dr E, Mr H, and Ms I.[9] Ms B was not included in the circulation. Health NZ told HDC, ‘[W]e are unclear if Ms B was advised of the need to self-fund the sound processor, as there was no record of this in the clinical notes.’
    
    
25. In a separate letter on 18 July 2011, Dr D wrote to maxillofacial prosthetist Mr G, requesting that he review Ms B and undertake the following:

‘[W]ork up a template to locate the three craniofacial implants to support her left prosthetic ear, two of which we will probably use and the third as a back-up. Could you include in the stent a location of the bone anchored hearing aid, which can be placed at the same time …’

26. In a letter to the Health Minister of 12 October 2016, Ms B said that she agreed to the BAHA abutment only after a ‘team meeting at Hutt Hospital where the head of department from Hamilton was present.’ Ms B said that [Mr H] told her she was entitled to get her first complete BAHA, not just the abutment, for free. Ms B recalled saying that, if this were the case, to go ahead and place the abutment for the BAHA.

Surgeries in 2012 and discussions post-surgery about funding in 2013

27. Ms B had two preparatory surgeries in 2012, both performed by Dr D, to remove the partial earlobe and insert two screws for the prosthetic ear and one screw/abutment for the BAHA.
    
    
28. The operation note for the first surgery (9 January 2012) stated that the operation was for ‘Craniofacial implant x 3 for left ear. BAHA (Bone Anchored hearing aid on the left)’.
    
    
29. On 23 July 2012, Dr D wrote to Mr A and Mr G, stating that Ms B had undergone her second-stage surgery that day and would be suitable for commencing prosthetic ear construction in four weeks’ time and that he ‘would be grateful if [they] could contact [the service manager] at the dental department to gain approval for the prosthesis.’
    
    
30. Ms B said that, in early 2013, she saw Dr D, who checked the screw placements and reviewed one that was not healing well. She said that, when she asked for a timeline for these procedures to be completed, Dr D told her there was no funding to complete either procedure.
    
    
31. Ms B said she was disappointed to be told that funding would not proceed. She said that she agreed to the preparatory surgeries[10] only because she had been informed that the BAHA and prosthetics would be funded. She said that she would not have put herself through the procedures had she not believed that the work would be completed and funded by Health NZ.
    
    
32. Health NZ did not provide any specific comment regarding the discussions because no formal clinical notes were available from the time and the staff involved were either no longer employed by the organisation or unable to accurately recall the discussions because of the passage of time.

Ms B’s interactions with Health NZ from 2013 to 2015

33. In July 2013, Ms B sent a letter of complaint to Health NZ requesting clarification of the misleading communications she had received around funding for the prosthetic ear and hearing aid. She said that Health NZ did not reply until April 2014.
    
    
34. In a letter dated 30 April 2014, Director of Operations Ms I stated:

‘I have reviewed all the clinical notes, and unfortunately you have been let down by the plastic and oral surgeons, as both have failed to provide informed consent, which also includes discussion of costs and a treatment plan.

The pamphlet we have available is quite clear – it is titled “Provision of Prostheses at Hutt Valley District Health Board – A guide for patients requiring prosthesis due to the results of surgery for cancer or tumour.” The pamphlet will explain what the issues are around funding, and you will see why there is an issue. That being said, you have been let down by the system through no fault of your own, so we would like to try and rectify your lack of prosthesis.

… I can certainly see that there was correspondence early on to Mr A about making a prosthesis and it may be that we at the DHB will pay for one only (sic) prosthetic ear.’

35. The letter outlined the steps to arrange the prosthetic ear. It also reiterated that further replacements would be at Ms B’s cost because she did ‘not fit the criteria for funding.’ Ms I also wrote that it was unclear what had happened around the hearing aid, but it appeared that Ms B had received the abutments required for the magnetic attachment (for the BAHA). Ms I stated that she would arrange an appointment with Dr D and audiologist Ms J.
    
    
36. Ms B said that she heard nothing further until 11 months later, when she was invited to a meeting at the hospital with Ms I and Dr D, which occurred on 30 March 2015.[11] Ms B recalled that, at this meeting she was told that she would receive the BAHA and a prosthetic ear, but only the first prosthesis, as Ms I had advised (see paragraph 33).
    
    
37. On 9 April 2015, Ms B received a second letter from Ms I, stating:

‘At our meeting we talked about the need for a box for your BAHA,[12] and I have emailed [Dr] C in that regard. [Dr] D also had a look at your abutments, one of which has been problematical for you, and this may in fact need to be cleaned out before proceeding.

We discussed your prosthetic ear and explained the criteria for funding for prostheses within Hutt Valley DHB, which unfortunately was not fully explained to you, giving you the expectation that these would be provided free of charge.

Because of the poor communication and the length of time since your surgeries, we agreed to fully fund one prosthetic ear with [Mr] A.[13] I further explained that these do not last forever, usually around [two] years and that they may fade with the sunlight and become brittle … [Y]ou will be responsible for purchasing new prosthetic ears in the future if you choose and these will be at your own cost.’

38. On 4 May 2015, Dr D wrote to Mr A, stating:

‘[Ms B] has received approval for a prosthetic ear and framework, and I would be grateful if you would see her to undertake this. She has had some grumbling infection around the most inferior implant. I removed the abutment, irrigated and cleaned the area and replaced the abutment and this seems to have settled down the problem. She also has a bone anchored hearing aid posteriorly and she is seeing Dr C about getting a hearing aid attached to this. Will you please make arrangements to see [Ms B] to start her ear.’

Trial of BAHA and funding approved by the Ministry of Health | Manatū Hauora

39. Ms B said that she did not hear anything further after April 2015, so on 1 August 2016 she contacted Hutt Hospital.
    
    
40. On 11 August 2016, Ms B met with Mr A, who advised her to contact the hospital and have Dr D fix her screw that had not healed. She recalled that, when she rang the hospital, she was told that she should have been recalled within the last year, but this had not happened.

8 September 2016 – trial of BAHA

41. On 8 September 2016, Ms B saw Dr C at Ms I’s request to determine whether Ms B’s current abutment was suitable for a BAHA.
    
    
42. Dr C’s clinic letter to Ms I stated:

‘I have explained to her that it’s perfectly possible to fit a regular cochlear BAHA device to the left ear. She tells me that she has a letter from you suggesting that both the BAHA and the prosthetic pinna have been accepted for funding. This letter was not available to me today and has not been located by your secretary either. I have left it with [Ms B] who will send in the letter to the Audiology Department, and they will talk directly to you.’

43. Later that day, Ms B saw audiologist Ms K at the audiology clinic. The clinic letter from that appointment noted that the appointment had been arranged at Dr C’s request to trial a BAHA.
    
    
44. Ms K’s clinic letter documented:

‘[Ms B has] normal sloping to mild high frequency hearing on the right and profound predominantly mixed hearing loss on the left (note: thresholds may be slightly worse due to overmasking[14]).’

45. At this appointment, a BAHA was trialled, and it was documented that Ms B found significant improvement with her hearing. The clinic letter noted that they had not arranged any further appointments for Ms B and that she had been informed that the cost would be $5,641.39 and they would await contact from Ms B if she wanted to proceed.
    
    
46. Ms B said she thought that the letter of 9 April 2015 confirmed that Health NZ would cover the cost of the BAHA. She said that, at this appointment, she thought they were finally making progress, but then she was told this was not funded and she would need to pay. Ms B stated that the removal of the trial device, after its demonstrated benefit, was challenging for her.
    
    
47. In a letter to Ms B dated 27 January 2022, Ms I acknowledged that this situation caused distress to Ms B.
    
    
48. On 9 September 2016, Ms K emailed Ms I stating:

‘[Ms B] was under the understanding that the DHB has agreed to pay for the BAHA hearing aid and said she has a copy of a letter saying this. I have let her know the cost of the device if it isn’t covered by the DHB, she doesn’t meet the criteria for MOH full funding. At this stage I have asked her to send through a copy of the letter to clarify this situation, as it was my understanding (via Ms J) that the BAHA hearing aid would not be covered by the DHB. I have not booked her in for future appointments as this will depend on whether she wants to proceed with the fitting if it is not covered by the DHB …’

49. On 14 September 2016, Ms B forwarded to Ms K a copy of Ms I’s 9 April 2015 letter.
    
    
50. On 15 September 2016, Ms K emailed Ms B twice, stating that the letter did not mention funding of the BAHA aid and that Ms I had advised that if Ms B chose to, the money for the prosthetic ear that Health NZ had agreed to fund could be used to make a partial payment towards a BAHA, instead of getting the funded prosthetic ear.
    
    
51. On 19 September 2016, Ms B replied to this email that she ‘was promised verbally by [Ms I] at the meeting that [she] would get the BAHA. There was no discussion of one or the other.’
    
    
52. On 10 October 2016, Ms B saw Dr D. In his clinic letter to Mr A, Dr D noted that he had cleaned Ms B’s skin infection and stated:

‘[O]nce it has settled down over the next 2–3 weeks I have asked her to contact you about getting impressions for the ear if she has sorted out the issues with the BAHA that she’s hoping to get as well.’

October 2016 — funding for BAHA and prosthetic ear approved by Minister of Health

1. 1. On 12 October 2016, Ms B complained to the then-Minister of Health Hon Dr Jonathan Coleman. Dr Coleman’s response[15] stated:

‘At my request the Ministry of Health looked into your concerns. I am advised that a Ministry official, […], phoned you on 14 October 2016 to discuss your situation and subsequently contacted Hutt Valley District Health Board (DHB) for more information.

I understand that […]contacted you again on 25 October 2016 to let you know that the DHB will fund the BAHA and a prosthetic ear. The DHB’s Plastics Service will also be reviewing its policy around the initial funding of prostheses and replacement prostheses. The outcome of this review may resolve your concern about the funding of prosthetic ears when you require replacements.’

54. When asked about this review, Health NZ told HDC that it is not aware of a review of funding for prosthetic ears at Hutt Valley.

Ms B’s further attempts to obtain BAHA and prosthetic ear in 2021

55. Ms B did not receive the BAHA or prosthetic ear in the almost five years that followed.
    
    
56. On 10 August 2021, Ms B contacted Manatū Hauora noting that, despite the letter from Dr Coleman, she was still awaiting an appointment. On 16 August 2021, Manatū Hauora responded to Ms B, noting that the letter from Dr Coleman stated that Health NZ had agreed to fund the BAHA and prosthetic ear and encouraging her to contact Health NZ directly.
    
    
57. On 16 August 2021, Ms B forwarded the email from Manatū Hauora and the letter from Dr Coleman to Health NZ, requesting that appointments be arranged given that both procedures had been approved.
    
    
58. On 19 August 2021, Ms I responded to Ms B, attaching the letter she had sent in April 2015 and stating that, as per that letter, Health NZ would pay for the mould for the prosthesis and first prosthetic ear. However, in relation to the BAHA, she stated:

‘Ms [J, audiologist] has told me that not many adults meet the funding criteria for a BAHA, and she has stated these below:

There are a number of categories for [Manatū Hauora] full funding that must be met:

1. 1. Moderately severe hearing loss since childhood[16]
   2. Sudden and severe degree of hearing loss in the better hearing ear (only available 6mths post sudden change in hearing)
   3. Person on a job seekers benefit, or working 30+ hr/week, or caring for dependents AND has a Community Services Card.

This means that you will not meet criteria and therefore as [Ms K] said, this would need to be self-funded.’

59. Ms B replied that she had been told that the BAHA would be fully funded, and she had not had the abutment put in for any other reason. She noted that this had also been approved by the Minister and should have been completed years ago.
    
    
60. Ms I responded that Manatū Hauora might be able to assist but that its criteria was as she had documented. She said that, to her knowledge, there had not been a review of BAHA funding but that Health NZ was still prepared to fund the mould and first prosthetic ear.
    
    
61. Ms B responded and reiterated that, before the surgery, she had been informed that the BAHA would be fully funded, which was why she had agreed to the abutment.
    
    
62. In 2021, Ms B saw Mr A again to get a mould made. According to Ms B, this had been stalled previously because she had been told that she needed the BAHA first to assist with the positioning of the prosthetic.

Impact on Ms B

63. Ms B stated that the experience had made a significant personal impact and that she would not have initiated the process had she been aware of the associated cost.
    
    
64. Ms B said that, as a result of proceeding with the two initial preparatory surgeries, she is now left with two screws and an abutment in her head, which require daily care.

HDC complaint process and further funding decisions from 2021 to 2022

2021 — Advocacy process and funding for BAHA only

65. Ms B made a complaint to HDC on 5 October 2021. Following a preliminary assessment, HDC referred her complaint for resolution between the parties with the assistance of an advocate from the Nationwide Health and Disability Advocacy Service (Advocacy). This decision was communicated to the parties on 14 December 2021.
    
    
66. On 27 January 2022, Ms I responded. Her letter outlined some of the events that had occurred from 2010 to 2015 and stated:

‘The criteria for [BAHA] to be funded is set by the Manatū Hauora Hearing Aid Funding Scheme, which has strict criteria. I have no say over who does or does not get one. The criteria are as follows … [see paragraph 11 for current criteria].

I have met with the audiology staff today and looking at the audiogram, the hearing loss is not significant enough to fit the criteria provided from the Ministry. This decision is not made by myself but instead based on the criteria for BAHA that all patients follow.

[Ms B], it is clear to me that the best option for you is to have a [BAHA] fitted, rather than a prosthetic ear at this time and this would have more positive impact on your life.

I am prepared to reimburse you the cost of [BAHA] instead of the funding for a prosthetic ear. If you wish to progress with having a prosthetic ear, you will need to fund this yourself.’

67. On 8 February 2022, Ms J from the Audiology Service contacted Ms B. Ms J noted that they had received Ms I’s letter dated 27 January 2022 and would like to make an appointment to commence the BAHA fitting process. Ms B declined, as her HDC complaint was still under review.
    
    
68. Ms B was dissatisfied with the response of 27 January 2022 from Health NZ. Advocacy requested an independent review by someone other than Ms I, given her previous involvement with Ms B’s care, but did not receive an acknowledgement or response.
    
    
69. Advocacy was unable to resolve Ms B’s concerns through its process, and, having reviewed its report, HDC decided to reopen the matter on 12 August 2022.

2022 — Funding for BAHA and one prosthetic ear approved following independent review

70. On 15 August 2022, HDC requested a response to Ms B’s concerns and relevant information from Health NZ. The original response date was 12 September 2022, but Health NZ was granted an extension until 26 September 2022.
    
    
71. However, in the interval, on 8 September 2022, Health NZ contacted HDC to advise that it would fund both the BAHA and the prosthetic ear for Ms B.
    
    
72. On 12 September 2022, the Health NZ Service Group Manager for Surgical Women’s and Children’s, Ms L, wrote to Ms B stating:

‘Thank you for making time to talk with me on Friday 9 September about your Health and Disability Complaint (C22HDC01951) and your eligibility for a funded Bone Anchored Hearing Aid (BAHA). As discussed, I have now concluded an independent review of your eligibility.

We are happy to advise that you will be funded for a BAHA, and the Audiology service at Hutt Hospital will be in touch with you around an appointment and any further information. Once you have your BAHA, should you wish to progress with a prosthetic ear, Hutt Hospital will fund the mould and first prosthesis with any ongoing prosthesis needing to be self-funded by you.

I am sorry that this has been a longstanding issue for you and am pleased that we have been able to positively resolve the situation. As you will appreciate, eligibility criteria is not something that the District Health Board has ability to over-ride. It is most unfortunate that with your earlier complaints the correspondence from the then Minister of Health (Jonathan Coleman) relating to the BAHA was not on your file.’

73. HDC has not sighted a copy of the independent review of Ms B’s eligibility referenced in that letter from Ms L.
    
    
74. Ms B responded to Health NZ on 15 September 2022, noting that she had provided all the information previously, including the letter from the Minister of Health, and that the process for the prosthetic ear had commenced last year but had stalled because of the continual infection around one screw and a lack of response to the referral made to the hospital in relation to this. She also stated in her email that her discussion with the Minister’s office had been lengthy, as they believed that she would also get future prosthetics, not just the first one. She stated that having the mould and first prosthesis funded was good, but she believed it was still not satisfactory.
    
    
75. There is no indication in the letter from the Minister, or any other corroborating evidence, that future prosthetics would be funded. However, the Minister’s letter states ‘The DHB’s Plastics Service will also be reviewing its policy around the initial funding of prostheses and replacement prostheses. The outcome of this review may resolve your concern about the funding of prosthetic ears when you require replacements.’
    
    
76. On 19 September 2022, Ms L responded to Ms B, reiterating that, although the BAHA and mould and first prosthesis would be funded, any ongoing prosthesis needed to be self-funded. Ms L stated in the email that funding specification parameters were not something she could change but that, should there be a nationally directed change to funding for this, they would advise Ms B at that time. Ms L apologised for the time it had taken to reach this point.

HDC’s requests for information from 2022 to 2024

77. As noted above, on 15 August 2022 HDC asked Health NZ to provide information related to Ms B’s complaint by 12 September 2022.
    
    
78. On 22 May 2023, HDC contacted Health NZ, noting that Health NZ had communicated directly with Ms B in relation to her concerns but stating that HDC still required a formal response to the request for information dated 15 August 2022. In response, Health NZ forwarded the email sent to Ms B on 12 September 2022, querying whether further information was required. On 23 May 2023, HDC confirmed that a response was still required.
    
    
79. On 22 August 2023, HDC advised Health NZ that it was still awaiting a response on this matter and advised a new response date of 15 September 2023. HDC advised that a formal response was required to allow HDC to assess the care provided to Ms B and any steps taken as a result of the complaint. On 25 August 2023, Health NZ acknowledged receipt of this email.
    
    
80. On 7 December 2023, HDC sent a further request for information to Health NZ, noting that the information was significantly overdue and requesting a response by 25 December 2023.
    
    
81. On 19 December 2023, Health NZ requested a further copy of HDC’s information request,
    stating that it was aware of a recent request from HDC but could not locate it. On the same day, HDC confirmed that it was awaiting a response on this complaint and forwarded relevant emails.
    
    
82. Health NZ requested a further extension to the end of January 2024, noting that a response had been prepared and there had been delay because of a complete change of senior staff since the response to the complaint had originally been worked on and the upcoming Christmas period.
    
    
83. HDC granted a final extension to 30 January 2024 but did not receive a response by this date.
    
    
84. Between January and May 2024, Health NZ queried whether a formal response was required and HDC confirmed this.
    
    
85. On 22 May 2024, Health NZ advised that a response was being worked on, and on 30 July it advised that the response was in its final stages and awaiting sign-off.
    
    
86. On 11 October 2024, Health NZ again advised that the response was in its final stages.
    
    
87. On 23 October 2024, Health NZ provided HDC with the response that had originally been requested in August 2022. Health NZ provided relevant clinical notes[17] from 2012 but stated that it had been unable to contact staff who had provided care to Ms B as they had left the organisation.
    
    

Responses to provisional opinion

88. Health NZ was provided with an opportunity to comment on the provisional opinion. Where relevant, its comments have been incorporated into this report. Health NZ acknowledged shortcomings in the care provided to Ms B between 2010 and 2024, accepted responsibility for the impact of delays in care, and apologised for the distress Ms B experienced. Health NZ advised that changes in staffing, systems, and processes over this period, together with incomplete historical documentation, limited its ability to fully investigate some aspects of Ms B’s care. Health NZ accepted the proposed recommendations.
    
    
89. Ms B was given the opportunity to comment on the provisional opinion. She thanked HDC for the report and appreciated its thoroughness. She noted that some information contained in the report was new to her, including learning for the first time about correspondence involving Mr G. In addition, Ms B told HDC:

‘Having navigated my whole life with disabilities, it has been heartbreaking to start this journey all those years ago and still not be at an end. As I have always stated, I wouldn’t have started this journey at all if I was told it wasn’t possible and wouldn’t be completed. I am grateful that there are a team of people that are looking out for people like myself that sadly get mismanaged or totally overlooked’.

Final opinion: Health NZ – breach

Information provided before surgeries in 2012 – breach

90. Under Right 6(1) of the Code of Health and Disability Services Consumers’ Rights (the Code), Ms B had the right to information that a reasonable consumer, in Ms B’s circumstances, would expect to receive, including an explanation of the options available and the costs of each option.
    
    
91. In 2012, Ms B had preparatory surgeries for a BAHA and a prosthetic ear. Ms B recalled being informed before these procedures and by multiple staff at Health NZ that these procedures would be fully funded and had decided to proceed on this basis.
    
    
92. Having carefully considered the information gathered to date, I consider it more likely than not that Ms B was not sufficiently informed about any possible cost that she would incur. This is based on the following:

• • The clinical notes that were available from before the 2012 surgeries do not discuss funding or cost (with the exception of the 18 July 2011 letter, discussed in paragraph 92).
  • Documented evidence of Ms B having raised concerns with Health NZ about funding and information provided to her before surgery since at least 2014.
  • Health NZ acknowledged in letters from 30 April 2014 and 9 April 2015 that they did not fully explain funding to Ms B, which led her to believe that the care would be free of charge.

93. I acknowledge that a letter dated 18 July 2011 from Dr D to Ms B’s GP, Dr F, states:

‘We also talked about the opportunity of placing a bone anchored hearing aid (BAHA) implant behind the prosthetic ear, and this is possible at the same time although the funding for the sound processor that attaches to the implant does not look to be available through the hospital and [Ms B] would have to fund this part of her treatment.’

94. Although Dr D mentions funding, neither the actual costs nor when these would apply are stated. The funding is also in relation only to the BAHA and not the prosthesis. More importantly, Ms B was not copied into, and did not receive a copy of, this letter. I agree with Health NZ that there is no other documentation to support the details of any information provided to her on this subject.
    
    
95. I have considered the level of individual responsibility in this case, noting that informed consent discussions about procedures would have occurred between the individual providers and Ms B, and therefore responsibility could be placed on these parties.
    
    
96. Much of the misunderstanding arose from Health NZ’s inconsistent explanations about what was and was not publicly funded, and none clarified her eligibility. Although staff at various points advised Ms B that both a BAHA and a prosthetic ear would be funded, later communications suggested that only one could be provided or that the cost of one could be offset against the other. This left Ms B unclear whether the BAHA, the prosthetic ear, or both were covered, and she was not provided with any written information distinguishing between the two devices or their separate funding pathways.
    
    
97. The failure to explain that the BAHA is a surgically implanted hearing device funded under the national Hearing Aid Funding Scheme, whereas a prosthetic ear is an external cosmetic device with different eligibility rules, also contributed to Ms B’s confusion and distress, which directly impacted her decision-making.
    
    
98. Ms B received inconsistent explanations from multiple staff about costs, none of whom adequately explained what the costs to her would be or in what circumstances they would apply. Given this and noting that Health NZ was unable to provide statements from the individual clinicians, I consider the responsibility to provide clear and accurate information of costs to lie at an organisational level. I also note that Health NZ acknowledged Ms B had been ‘let down by the system.’ Accordingly, I have attributed the deficiency in information provision to Health NZ.
    
    
99. Based on the documentation, including Health NZ’s acknowledgement that fulsome information of costs was not provided, I find it more likely than not that Ms B was not provided adequate information regarding the potential costs of the prosthetic ear and the BAHA. Cost of treatment is information that a reasonable consumer would expect to receive, particularly when the treatment is likely to be costly and involves invasive care. Without understanding the cost of the care, and the circumstances in which she would have to pay for it, Ms B was unable to make an informed decision as to whether to proceed with the care. Accordingly, I consider that Health NZ breached Right 6(1) of the Code.
    
    
100. Although Ms B recollects that she was expressly told on several occasions that the procedures would be fully funded, in the absence of any contemporaneous and corroborating evidence, I cannot make a factual finding on this.
     
     

Care provided from 2010 to 2022 – breach

101. As a healthcare consumer, Ms B had the right to have services provided to her in a manner consistent with her needs, in accordance with Right 4(3) of the Code. Ms B has profound hearing loss in her left ear and has been awaiting the completion of procedures for a BAHA and prosthetic ear since her preparatory surgeries were undertaken in 2012.
     
     
102. When Health NZ confirmed funding for both procedures in September 2022, it had been 12 years since the initial discussions, 10 years since Ms B had the preparatory surgeries, and 6 years since the Minister of Health had confirmed funding for both procedures.
     
     
103. It appears that the main reason for the delays in proceeding with both procedures was the issue of funding for the BAHA and, in particular, Ms B’s eligibility for the Manatū Hauora Hearing Aid Funding Scheme.
     
     
104. Although a first prosthetic ear had been approved for funding since April 2014, this process was stalled until 2022 because Ms B was told that the BAHA should be placed first to assist the positioning of the prosthetic. Progress then stopped again in 2022 because of a continual infection around one screw, for which Ms B was waiting for review at the hospital, and further discussions about which procedure would be funded.
     
     
105. Limited information is available to me about the events and consideration of Ms B’s eligibility from 2010 to 2015, so it is difficult for me to comment further on the delays during this period. However, in my view, there was a turning point in 2016.
     
     
106. The Minister of Health’s 2016 letter confirmed to Ms B that Health NZ would fully fund the BAHA and the first prosthetic ear. This correspondence indicates that Manatū Hauora determined that Ms B would receive full funding for these items from Health NZ and that this decision would supersede all previous assessments and criteria.
     
     
107. Despite the Minister of Health’s letter, it appears this was not recorded or conveyed to relevant staff at Health NZ as, in 2021 and 2022, Health NZ told Ms B that she did not meet the Manatū Hauora funding criteria for a BAHA.
     
     
108. In September 2022, an independent review of Ms B’s eligibility for funding was conducted, and subsequently funding for both procedures was approved, within three and a half weeks of HDC reopening its complaint. HDC has received a copy of a letter from Health NZ to Ms B confirming the outcome of this review. HDC has not seen a copy of the independent review.
     
     
109. As far as HDC is aware, Ms B had not been seen by the Audiology Service in the intervening period, nor had she experienced a change in the severity of her hearing loss, which was already profound. There was no reference to any changing circumstances in Ms B’s hearing, or factors that now made her eligible, and I note that the criteria for funding have not changed since 2016.
     
     
110. This suggests to me that Ms B’s hearing loss would have met the Manatū Hauora criteria and made her eligible for funding since at least 2016.
     
     
111. If Health NZ’s agreement to fund in 2016 and the review of eligibility in September 2022 were based on funding criteria other than those set out by Manatū Hauora, it is not clear what these criteria were and would contradict the previous references to Ms B not meeting the Manatū Hauora funding criteria.
     
     
112. In September 2022, Health NZ told Ms B that it cannot override the eligibility criteria. I note that Health NZ also stated that it was most unfortunate that the correspondence from the then-Minister of Health relating to the BAHA was not on Ms B’s file, implying that this would have been sufficient to approve funding.
     
     
113. I do not accept this as an explanation for the delay since 2016. Not only does evidence show that Manatū Hauora had contacted Health NZ directly about this in 2016, but also, Ms B had forwarded this directly to Health NZ in 2021, following which she had two further refusals to fund both procedures.
     
     
114. I consider that, had Health NZ applied to Manatū Hauora for funding in accordance with the Hearing Aid Funding Scheme process, the application may have been accepted. There is also no doubt that, after Ms B’s initial assessments, a hearing aid was recommended as part of the solution for improving Ms B’s hearing, as evidenced by the preparatory surgeries being undertaken in 2012.
     
     
115. Further, the likelihood of funding being approved in 2016 greatly increased with the change in criteria, the Ministry’s previous involvement in Ms B’s case, and its confirmation of funding in October 2016.
     
     
116. For the reasons outlined above, I consider that there has been an unacceptable delay in Ms B receiving a BAHA and prosthetic ear since at least 2016. In my view, Health NZ failed to provide services in a manner consistent with Ms B’s needs, and, accordingly, breached Right 4(3) of the Code.

Complaint management – breach

117. Right 10(3) of the Code states that ‘[e]very provider must facilitate the fair, simple, speedy, and efficient resolution of complaints.’
     
     
118. HDC asked Health NZ to respond to its initial information request by 12 September 2022, but Health NZ did not provide its response to HDC until October 2024, over two years after the original request was made. This was despite HDC following up with Health NZ on numerous occasions and granting extensions to the initial deadline, which it also did not meet.
     
     
119. In addition, Ms B said that she first complained directly to Health NZ in July 2013 and did not receive a response until 30 April 2014. Health NZ did not comment on this timeline, which is supported by the contemporaneous documentation. A copy of the 30 April 2014 response was provided to HDC and indicates that it is the first response to Ms B’s July 2013 complaint.
     
     
120. Facilitation of complaint resolution is essential for both parties to ensure that concerns are addressed promptly and any necessary remedial actions can be taken. This is furthered when a complaint is made to this Office.
     
     
121. Health NZ’s delay in responding to Ms B’s 2013 complaint did not facilitate a fair, simple, speedy, or efficient resolution of her concerns and contributed to Ms B’s overall feelings of distress. Moreover, their lack of timely engagement with HDC despite numerous follow-ups and extensions undermined the legislative framework that requires timely participation in the external complaints process.
     
     
122. Accordingly, I find that Health NZ has breached Right 10(3) of the Code.
     
     

Recommendations

123. I recommend that Health NZ Capital, Coast & Hutt Valley:

1. 1. Provide a written apology to Ms B for the breaches of the Code identified in this report. The apology should be sent to HDC within three weeks of the date of this report, for forwarding to Ms B.
   2. Conduct a random audit of 20% of the hearing aid and prosthesis funding decisions (focused on the devices referenced in this case) over the past 15 years. A summary of the audit findings, including corrective actions should noncompliance be identified, is to be provided to HDC within six months of the date of this report.
   3. Conduct a review and evaluation of its existing policies and information relating to communication around funding and the costs of hearing aids and prostheses (as regards the devices referenced in this case) to consumers. A report of the review and any amendments is to be provided to HDC within three months of the date of this report.
   4. Conduct a review of its complaints policy and procedures to ensure that responses are provided to consumers in a timely manner and that relevant information about the complaints process is shared correctly. A report of the review and evaluation is to be provided to HDC within three months of the date of this report.
      
      

Follow-up actions

124. A copy of this report with details identifying the parties removed, except Health NZ Capital, Coast & Hutt Valley, will be sent to the Ministry of Health | Manatū Hauora and the Ministry of Social Development | Te Manatū Whakahiato Ora and placed on the Health and Disability Commissioner website, www.hdc.org.nz, for educational purposes.

 

Appendix A: Hearing aid funding and subsidies

Whaikaha – Ministry of Disabled People advised that, prior to 2012, hearing aid funding was provided by the Ministry of Health | Manatū Hauora as per the process outlined in ‘Equipment for people who are Deaf or have hearing loss’ (November 2007).

Under this process, New Zealand residents who had a permanent hearing loss or deafness that was not covered by ACC or Veterans’ Affairs may have been able to obtain equipment through Manatū Hauora. Whaikaha – Ministry of Disabled People stated:

‘Hearing aids

You may be able to get Manatū Hauora funding towards the cost of hearing aid(s) if they are essential for you to:

• Work full-time or to your maximum capacity
• Study at tertiary level or do vocational training leading to future employment (full-time or to your maximum capacity)
• Register as a job seeker to help you find a job
• Safely look after someone who depends on you
• Communicate with other people when you have more than one disability (such as intellectual disability and hearing loss, or vision and hearing loss).

Hearing aid subsidy

If you need a hearing aid, but do not need it for the reasons given above, you may be able to get help with the cost of the hearing aid. An audiologist (see over) will be able to tell you more about this subsidy.

…

How can I get hearing aids?

You can have your assessment with an audiologist working at a District Health Board or in private practice. If you visit a private audiologist you will have to pay for this assessment, and any fitting costs.

The audiologist completes an assessment of your needs and may recommend hearing aid(s) and/or other hearing or alerting equipment. If you need hearing aids for any of the reasons outlined above, the audiologist can make an application to Accessable or Enable New Zealand for funding assistance. You may need to pay towards the cost of the hearing aid(s).

…

What do Accessable and Enable New Zealand do?

Accessable and Enable New Zealand receive applications from assessors and check these to ensure the assessor has considered the different support and equipment options available. This is so any equipment you receive is suitable and the best for you.

Accessable and Enable New Zealand can arrange repairs of funded hearing aids and equipment. See your audiologist about repairs to, and the cost to repair, your subsidised hearing aids.’

In 2011, there was a change to the process, and the Hearing Aids Services Notice 2011[18] set out the terms and conditions for when the Crown would pay for hearing aid services for eligible people. In 2012, Manatū Hauora produced guidelines for two types of funding for hearing aids — the Hearing Aid Funding Scheme (which funds the cost of hearing aids for eligible New Zealand residents) and the Hearing Aid Subsidy Scheme (which provides a subsidy towards the cost of hearing aids).

In 2012, the Hearing Aid Funding Scheme guidelines stated:

‘Who can use the Hearing Aid Funding Scheme?

The Manatū Hauora Hearing Aid Funding Scheme covers the cost of hearing aids for eligible children and adults who are New Zealand citizens living in New Zealand or who are permanent residents. Adults are eligible if they:

•   have had a significant[19] hearing loss from childhood, or

•   have hearing loss and a significant visual impairment (for example, Deafblind); or hearing loss and an intellectual disability or a physical disability that limits their ability to communicate safely and effectively, or

•   have a Community Services Card and are:

+ in paid employment for 30 hours per week or more, or

+ a registered job seeker seeking paid employment, or

+ doing voluntary work (more than 20 hours per week), or

+ studying full time, or

+ caring full time for a dependent person.

This funding covers only the price of the hearing aid and does not cover any assessment or fitting fees that audiologists may charge.

Funding for a hearing aid for each ear is available for adults no more than once every six years. For children it is available no more than three times in six years.

You may be able to get help to buy hearing aids from the Accident Compensation Corporation (ACC) or Veterans’ Affairs New Zealand. If you can get help from either of these organisations, you cannot get support from the Manatū Hauora Hearing Aid Funding Scheme as well.

Only audiologists who are full members of the New Zealand Audiological Society can access the Manatū Hauora Hearing Aid Funding Scheme for their clients. Check that your audiologist is a full member of the Society. If they are not, you will not be able to get funding support from Manatū Hauora.

…’

The flowchart for ‘What can I expect from audiology services?’ and the ‘Frequently asked questions’ and ‘What costs might I have to pay?’ sections from the Hearing Aids Funding Scheme are copied below.

[Please refer to PDF version of this report to view image]

 

In 2012, the ‘Hearing Aid Subsidy Scheme guidelines’ stated:

‘The Ministry of Health’s Hearing Aid Subsidy Scheme provides $511.11 (including GST) per hearing aid to adults (over the age of 16) who have a permanent hearing loss and need a hearing aid, are New Zealand citizens living in New Zealand or permanent residents who are not covered under the Hearing Aid Funding Scheme.

You may be able to get help towards the cost of hearing aids from the Accident Compensation Corporation (ACC) or Veterans’ Affairs New Zealand. If you can get help from either of these organisations you cannot also get support from the Manatū Hauora Hearing Aid Subsidy Scheme.

The subsidy for each hearing aid is available no more than once every six years.

The Hearing Aid Subsidy Scheme does not cover any additional costs for hearing assessments or hearing aid fitting services which audiologists may charge.

Only audiologists who are full members of the New Zealand Audiological Society can access the Hearing Aid Subsidy Scheme for their clients. Check that your audiologist is a member of the Society. If they are not a full member, you will not be able to get the subsidy from the Ministry of Health.’

The flowchart for ‘What can I expect from audiology services?’, and sections for ‘Frequently asked questions’ and ‘What costs might I have to pay?’ from the Hearing Aids Subsidy Scheme are copied below. 

[Please refer to PDF version of this report to view image] 

 

In 2016, the criteria were amended[20] such that adult New Zealand residents may be eligible for the Hearing Aid Funding Scheme if they meet one of these criteria:

• Have had a significant hearing loss since childhood
• Have both a hearing loss and another impairment that limits ability to communicate safely and effectively, e.g., visual, intellectual or physical
• Have had a sudden significant hearing loss within the last six months
• Have a community services card and are either working more than 30 hours per week, in full-time study, seeking employment, engaged in voluntary work, or are the main carer of a dependent person

The Hearing Aid Funding Scheme can be applied for by an audiologist/audiometrist based in a public hospital. If the Funding Scheme is accessed through the DHB, the patient usually does not incur any cost (other than possible fitting fees and cost of batteries).

Manatū Hauora will contribute towards the cost of the hearing aid portion of the device referred to as ‘the sound processor’. The sound processor can be attached to a surgically implanted component called an abutment or can be worn on a head band. The surgery, abutment and implant are either funded through the public health system (via the District Health Board) or privately. The usual eligibility and access criteria for funding of hearing aids will apply. This means that some people needing a BAHA will be eligible for funding towards the price of the sound processor (from the Hearing Aid Funding Scheme) and others will be eligible to receive the hearing aid subsidy of $511.11 (incl. GST) towards this cost (from the Hearing Aid Subsidy Scheme).

The Manatū Hauora ‘Hearing Aid Services Manual’ (September 2017)[21] outlines the eligibility criteria, funding guidelines, roles and responsibilities and the processes to be used when making applications or claims for Hearing Aid Services funded by Manatū Hauora. The manual was for:

• approved assessors who complete hearing assessments for people with hearing loss and submit applications or claims for Hearing Aid Services on the person’s behalf
• manufacturers and distributors of hearing aids and accessories
• people with hearing loss, their families, whānau and/or support people who wish to understand more about this service.

Section 2.2 outlines eligibility: To be eligible for the Ministry’s Hearing Aid Services, the person will have to meet all the following criteria:

• have a permanent hearing loss as determined by a hearing assessment and hearing needs assessment
• not be eligible for cover or entitlement through ACC, ACC and the Ministry jointly, or from Veterans’ Affairs New Zealand
• live in New Zealand
• be a New Zealand resident or be eligible for health and disability services under a reciprocal health agreement with another country.

Section 2.12 provides the following information on the funding of BAHAs:

‘Bone Anchored hearing aids may also be fitted for older children and adults where conventional hearing aids are unsuitable to meet their needs due to a medical condition. Rationale must be provided by the Otorhinolaryngologist (ORL) and the Approved Assessor, along with the planned surgery date.’

The Ministry will contribute towards the cost of the hearing aid portion of the device referred to as ‘the sound processor’. The sound processor can be attached to a surgically implanted component called an abutment or can be worn on a head band. The surgery, abutment and implant are either funded through the public health system (via the District Health Board) or privately.

Loan sound processor devices are available from relevant suppliers or clinics which can be trialled with a head ‘band’ to ascertain if the person is likely to gain benefit before an application for funding is made. This trial is not usually lengthy. If the trial is successful an application may be made for funding for the sound processor.

Section 3.1.2 provides further details on the criteria for ‘Adults 16 years of age and over who have complex needs.’ A person with complex needs will have experienced one or more of the following factors:

• Moderately severe or greater long-term hearing loss since childhood:

• The average of a person’s 3 worst hearing threshold levels, which have been measured at audiometric frequencies of 500, 1000, 2000 and 4000 Hz, is equal to or greater than 56 dB HL in the better ear and
• The person has had a continuous need for hearing aids since childhood.

Section 3.2.5 outlines further details on the ‘Funding of Bone Anchored Hearing Aids’:

‘Bone Anchored (BA) hearing aids can be considered where there is clear rationale provided by the Approved Assessor and the ORL specialist as to the essential need for the aids.

Applications for BA hearing aids should include the following:

• the medical reason for the consideration of BA hearing aids
• the outcome of the trial of the BA or BC hearing aids
• confirmation of the planned date of surgery
• the reason why BC hearing aids are not being considered.

Following the outcome of a successful trial, an application can be made for funding for the sound processor.

Funding for bilateral BA hearing aids will be considered when a person has bilateral atresia. Bilateral BA hearing aids for people who have other conditions will be considered by the Ministry’s Environmental Support Services (ESS) Review Panel on a case-by-case basis.’

In 2025, Disability Support Services (a business group within the Ministry of Social Development) published an updated ‘Guide to Getting Hearing Aids: Hearing Aid Funding Scheme.’[22] The eligibility criteria remained unchanged from 2016.

Appendix B: Bone Anchored Hearing Aids (BAHA)

 

[Please refer to PDF version of this report to view image]

 

 

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