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Health Commissioner and advocates

New Code of Rights launched

The new Code of Health and Disability Services Consumers' Rights came into effect on I July having suffered some tinkering at the hands of the Minister of Health. Amongst other things, she removed any mention of the Treaty of Waitangi and reinstated the controversial clause which let of providers if they could argue they could not give effect to the Code because of 'resource constraints'. In addition, the right to an interpreter was watered down to 'where necessary and reasonably practicable'.

Labour has promised that it will amend the Code to include a right to health care and minimum waiting

Advocacy service due to start

From 1 July this year a free national advocacy service will be available to health and disability service consumers. In early February Paul Curry, Director of Advocacy in the Office of the Health Commissioner, announced that ten regional contracts for advocacy services had been let, creating new services in some areas and expanding existing services in Northland, Auckland, Waikato, Christchurch and Otago.

The equivalent of 33 full-time advocates will be appointed. During March and April ah advocates will receive training to ensure consistency of practice throughout the country. Contractors will operate under their own company or trust names and display a logo identifying them as providing a service under the Health and Disability Commissioner Act. The service will become operative on 1 July when the Code of Rights becomes effective.

Consumers will be able to contact advocates directly or through the national number of the Health Commissioner 0800 11 22 33.

Draft Code with Minister

The Draft Code of Health and Disability Services Consumers' Rights, recently delivered by Mrs Robyn Stent Health Commissioner to Mrs Shipley, no longer includes some controversial limitations contained in the earlier version of the code.

The Code is now not restricted to the manner in which services are provided, to the exclusion of whether they are provided, and Clause Three, the controversial 'Let-Out' clause which said providers had an automatic excuse for not meeting the code if there were 'resource constraints' is no longer there.

Clause 3 now states that provides are in breach of the Code 'unless the provider has taken reasonable actions in the circumstances to give effect to the rights and comply with the duties in the Code' and 'the onus is on the provider to prove it took reasonable actions'.

Right 9, which gave the consumer the right to decide which rights should be met if not ah could be, has been dropped. Instead a new right has been added which specifies that consumers who are the subjects of teaching and research have ah the rights in the Code. In other places in the Code rights for these subject are further spelled out.

Other changes:

  • Observance of Maori tangata whenua status under the Treaty of Waitangi is recognised;
  • Sexual exploitation is specifically mentioned;
  • The right to a competent interpreter is specified;
  • Areas where written consent is required are expanded to include experimental procedures, invasive, intimate and intrusive procedures, and those where there is a significant risk;
  • Consumers have a right to express a preference as to who provides the service and to have that preference met where practicable.

One area of the code which still causes concern is the specification that consumers have the right to as much information as that 'needed by a reasonable consumer' to give informed consent. The concept of the 'reasonable consumer' is a medical construct. It remains to be seen whether it will limit the rights of consumers to have as information as they want, rather than the doctor deciding what is reasonable for a person to be given.

Copies of the Draft Code, along with an analysis of the submissions and discussion of why the changes have been made is available from the Health Commissioner's Office, Freephone 0800 11 22 33.

Proposed Draft Code released by Health Commissioner

Consumer reaction to the draft Code of Rights for Consumers of Health and Disability Services has been one of dismay. While the ten rights in the Code need further work, concern has focused on the overall approach taken, and a controversial limitation clause which can be used to automatically set aside rights in the Code (Clause 3). The Code was released in early August by Robyn Stent, Health Commissioner.

Access to health care not covered

The Commissioner has decided that the Code is enforceable only "in relation to how services are provided but not to whether services are provided" (Clause 1). This means that the failure to provide a service, or a decision not to provide or purchase a service cannot be challenged under the Code. Mrs Stent says that this limitation is based on her interpretation of the Health and Disability Services Commissioner Act.

This interpretation means that people on waiting lists or refused particular services because they are not purchased by a particular regional health authority (RHA) would not have recourse to a complaint under the Code.

Imagine a situation where a person living in Tauranga goes blind waiting for a cataract operation because Midland Health RHA has not deemed it a priority area for purchase. This would breach Right I (respect, dignity, social needs); Right 2 (freedom from discrimination); Right 3 (independence and quality of life); Right 4 (standard of service); Right 7 (to choose); Right 10 (to complain). Yet, according to the Commissioner, these rights would not be breached, because the Code does not apply. However, a person living in Dunedin, might not only get the cataract operation, but ah the rights might be operative, because he happens to live in the Southern RHA which purchases a greater number of cataract operations. (This is a theoretical example).

At Auckland meetings to discuss the Code, Mrs Stent said that the Code posed a fiscal risk to the Government and as the Government had the right of veto over the Code, she had worked with Government departments to make sure this did not happen. Hence the restrictions and limitation clause.

A serious legal error

However, Queen's Counsel Dr Rodney Harrison, says that Mrs Stent has made a "serious legal error" in adopting this approach. He says that as the Act requires the Code to contain provisions relating to the duties of providers to provide services of an appropriate standard this "can and should be interpreted to include questions of failure to provide services".

He says that the Act nowhere draws the distinction between purchase of services and delivery of services, or between whether and how services are provided. He notes that the Crown's objectives under the Health and Disability Services Act are to secure for the people of New Zealand the best care and support for those in need of services, and the greatest independence of those with disabilities, that is reasonably achievable with the funding allowable. The Code should reflect these objectives.

As well, Section 20 (1) (regarding meeting individuals needs, standards of care, and respect for the independence of the individual) of the Health and Disability Commissioner Act should be read to mean there is a positive duty to provide services, not just to perform duties if the provider decides to provide the services. In addition, the Commissioner is empowered under Section 14 (1) (e) of her Act to investigate actions, including "failure to act" and "any policy or practice".

New Zealand is also signatory to various international covenants and conventions which require the Government to protect the health of its citizens and provide health care.

Dr Harrison says it would be a 'travesty' if the fundamental rights outlined in the Code were to be completely null if a provider refused to provide services.

Independence of Commissioner

In its submission, Women's Health Action argued that the Commissioner should have drafted an unequivocal statement of rights, without undercutting them in expectation of their acceptability or unacceptability to the Government. The Commissioner is meant to protect consumers, not the Government's fiscal interests.

If the Government then wanted to reject some rights or exempt particular agencies it would have been clear to the people of New Zealand who made the decision. This would not have rebounded on the Commissioner, as it would have been a Government decision, just as the Human Rights Commission is able to say that the Government exempted itself from the Human Rights Act, rather than that the HRC exempted it.

As the Code stands, says WHA, the Commissioner has undermined the credibility of her Office. The stance Mrs Stent has taken politicises what was supposed to be an independent and apolitical office.

The 'let-out' clause

Consumer groups have also criticised the 'Let-Out' Clause, (Clause 3) regarding limitations of rights because of 'resource constraints'. This means that rights such as those to privacy or informed consent can be put aside if providers can argue they did not have the funding to meet them. Clause 3 does not just say that this argument can be made, but that this is 'demonstrably justifiable', in other words it provides an automatic excuse.

Other areas of concern in the Code are:

  • Teaching and research situations are not adequately covered.
  • There is no acknowledgment of the Treaty of Waitangi.
  • Sexual abuse should be specifically stated as a breach of rights.
  • The informed consent requirements should be fuller.
  • There should be an absolute right to an interpreter.

Mrs Stent plans to deliver the Draft Code to the Government in mid-October. It is then up to the Government to decide whether to accept it or alter it.

Draft Code of Rights

Clause 1 Consumers have rights when receiving services from a provider

Clause 2

Rights and Duties

Right 1 Right to Respect, Dignity and Privacy

Right 2 Right to Freedom from Discrimination

Right 3 Right to Independence

Right 4 Right to Appropriate Standards of Service

Right 5 Right to Effective Communication

Right 6 Right to be Fully Informed

Right 7 Right to Make Informed Choice and Give Informed Consent

Right 8 Right to Support

Right 9 Right to Prioritise

Right 10 Right to Complain

Clause 3

Reasonable Limitations to Rights

The rights in the Code can be limited 'if it is not reasonably practicable due to resource constraints to give effect to the right'.

Health Commissioner and the Code of Patients' Rights

Robin Stent, the Health and Disability Services Commissioner, has begun the process of developing the Code of Rights for health consumers. This is the cornerstone of the Health and Disability Services Commissioner Act, and until such time as the code is completed, Robin Stent cannot accept complaints about breaches of patients' rights. Mrs Stent has made the ambitious promise of saying she intends to get the code to the Minister of Health by 20 October.

The commissioner is charged to consult widely in drafting the code. She is now seeking initial submissions from the public and special interest groups. These can be sent in writing, on disk (ASCI text), or on audio tape before 31 May to: The Health and Disability Commissioner PO Box 12299 Wellington FAX: 0800 843 843 Toll free phone: 0800 11 22 33

After the first round of submissions, Mrs Stent will produce a first draft which will be used for a second round of consultation. The final draft Code will be submitted to the Minister of Health for enactment into law. Ron Patterson, a medico-legal specialist who works for the Northern RHA, will assist in the drafting of the Code.

The Act defines a number of principal areas the Code of Rights must cover. These include:

  • Informed Consent;
  • Standards of Service;
  • The rights of consumers and obligations of providers as they relate to:
    1. matters of privacy
    2. health teaching and research
    3. providing services whicl1 take into account the needs, values and beliefs of different cultural, religious, social and ethnic groups;
  • The obligation of providers to make available effective avenues of communication with consumers, including interpreting;
  • Establishment and operation of complaints procedures by providers;
  • Services which respect the dignity and independence of the individual.

A concern of women's health and other community groups is the control the Government can exercise over the code. In the original, the Commissioner was to develop a Code, not a draft Code which now has to be approved by Government. Bill Birch has expressed concern about the 'fiscal implications' of the Health Commissioner's role. A Code could include provisions such as rights to access services, and the right not to have one's health compromised by being on a waiting list for long. Concern about issues such as this is probably behind National's redrafting of the original bill. During this redraft the Commissioner lost final control over the Code. There is a good deal of room for Government interference in the final form of the Code, just as the Government exempted itself from the provisions of the Human Rights Act before it passed into law.

The Health Commissioner is also in the process of appointing a Director of Advocacy Services who will have responsibility for setting up advocacy services throughout New Zealand. Guidelines will be developed to guide how advocates do their work. The Commissioner is also seeking comment and suggestions on guidelines for consumer advocacy services.

Health and Disability Commissioner Act passed and commissioner appointed

The Health and Disability Commissioner Act was finally passed into law in October. This culminated over four years lobbying on the part of Women's Health Action and other women's health organisations. The original bill, introduced by Helen Clark in 1990, was hailed by consumer groups as very close to what Judge Silvia Cartwright had recommended in the Report of the Cervical Cancer Inquiry. However, National responded to representations by medical interests who saw the bill as punitive to doctors, by significantly rewriting it. Most notably, Bill Birch, when Minister of Health in 1993, announced that most consumer complaints would be channelled into the professional disciplinary systems, and that the system of patient advocates was to be transferred from the Health Commissioner's Office into the Ministry of Health.

Vocal objections from groups such as ours resulted in the bill eventually being returned to something nearer its original form. As it passed into law, the complaints system is independent of the disciplinary systems, although the Director of Proceedings in the Office of the Health Commissioner can prosecute cases through the professional bodies where matters of discipline are involved. The advocates were also brought back under the umbrella of the Health Commissioner's Office, although under the direct jurisdiction of a Director of Advocates.

Problem areas do remain in the act. These are that the Commissioner's draft Code of Health and Disability Services Consumers' Rights has to be presented to Parliament, so there is a loss of independence at this point. This change probably results from the government's fear that the code may contain provisions about rights to access to health care which could cost it money, for example, provisions about waiting times for health care.

Another remaining problem area is the provision to 'purchase' advocacy services, rather than provide them. There is a concern that the roles of these services will vary through the country, and that services which are under contract may be less than brave in pursuing the interests of their clients.

First commissioner

On 8 December Jenny Shipley announced the appointment of Robyn Stent as Health Commissioner. Mrs Stent was Acting General Manager of the Auckland Area Health Board in 1993 and is currently a director designate of Auckland Healthcare. Jenny Shipley said she 'brings...a wealth of experience in management roles across sectors which include health, disability, energy, telecommunications and banking.' She said she was also involved with a number of trusts set up to help people with mental and intellectual disabilities achieve greater independence.

Robyn Stent is not known to women's health consumer groups in Auckland. It seems to be a pattern with the government to appoint people with financial backgrounds to positions where other skills and background might, to the observer, have seemed desirable.

The commissioner is charged to consult with consumer and professional groups in developing the Code of Rights and setting up the office. Mrs Shipley expects the drafting of the code to take a year. Before it is completed, the office will not be able to investigate complaints.

Health and Disability Services Commissioner

The Selwyn by-election got in the way of the passage of the legislation to create the position of health commissioner. It is now due to be passed before Christmas! (This was also promised in 1990.)

Meanwhile the position has been advertised, with about 50 applications. Rumour has it that about one-third of the applicants were men, and about one-third health professionals.

The Federation of Women's Health Councils prepared an opinion on attributes needed by the Health Commissioner and forwarded these to the Ministry of Health. The Federation argued that it was not appropriate for the Commissioner 'to be a medical practitioner, or to have acted on behalf of a health professional group'. The rationale for this was to prevent 'capture of the position by powerful health professional groups'. A doctor would not be appropriate in the role because the position was created to remedy the imbalance in power between doctors and patients.

The Federation also argued that the person should not have played a part in the restructuring of the health system as complaints may arise from the restructuring. Management skills and legal skills were not essential as these could be bought in. It would be advantageous for the Commissioner to have a background in human rights, patients' rights and ethical issues.

The main attributes needed in the person appointed were leadership qualities, good listening and communication skills, a personal style that brought credibility to the role, the ability to establish a public presence, and the ability to carry out an education function.

We were dismayed to see that the advertisements for the for the position did not mention the Cartwright Inquiry, and awareness of women's health issues was not part of the requirements for the job.

Judge Cartwright emphasised in her report the vulnerability of women in the health system, and the position was seen as necessary to protect women as well as other health consumers. Virtually all the trials notorious internationally for violating patients' rights have involved women and other vulnerable groups such 'as blacks, prisoners, poor people and retarded children.

The system has a short memory.

Health Commissioner Bill

The bill had its second reading in late June. The version which came back into the House was closer to the original bill, introduced by Helen Clark in 1990. The amendments made under Bill Birch in 1993 had been modif1ed so that the revised bill is closer to its original concept. A new feature is the creation of a Director of Advocacy Services placed within the office of the Health Commissioner (not the Ministry of Health as Birch advocated), who would be responsible for advocacy services. The Commissioner is no longer required to refer cases to disciplinary processes as the Bill Birch version required, but can take cases to an independent complaints tribunal.

There are still areas of concern. These primarily relate to the relationships between advocates, Director of Advocacy Services and Commissioner, and the requirement that the director purchase' advocacy services.

Opposition to changes to Health Commissioner

On 5 August Bill Birch introduced changes to the Health & Disability Services Commissioner Bill in the form of a Supplementary Order Paper (SOP). These changes changed the bill from the patient-centred model recommended by Judge Cartwright and embodied in Labour's original bill, to one where the doctors' interests had been given paramountcy. In an effort to make the commissioner appear impartial to the medical profession, the commissioner had been stripped of powers and the protection of patients' rights was placed a poor second to the preservation of medical control of complaints' processes.

WHA did a lot of media work to alert the public to this drastic change in the bill, and the women's health network also expressed its disapproval. Nursing organisations also voiced opposition.

The press releases which emanated from Mr Birch's office and that of Katherine O'Regan indicated that they were not well-informed about the content of the bill or the implications of the changes. The wording in these releases led to the inescapable conclusion that the changes had been made to meet the objections of the New Zealand Medical Association, as the wording was frequently similar to that contained in NZMA statements.

When the SOP was released on 5 August, the government said it would be passed this term, however, we believe the objections have saved this from happening. Governments do not seek contentious legislation near elections, and the SOP was quietly omitted from the parliamentary order paper. It will not pass this term, so the ultimate fate of the HC Bill very much depends on who is returned at the election.

WHA made a submission on the SOP to the Social Services Select Committee. Interested groups were given little more than a fortnight to make submissions. We subsequently appeared before the committee protesting the changes.

The changes as outlined in the SOP have resulted in a weak, fragmented service which is not focused on the needs and rights of consumers, is not user friendly, and is open to political interference on a number of levels.

The human rights focus has been destroyed and replaced with something which is now centred on health professionals and their disciplinary processes.

Our submission focused on our opposition to three major areas where changes had been made by the SOP. These three areas are as follows:

Patient Advocacy

The SOP proposes the removal of patient advocacy from the office of the Health Commissioner, and the placement of a Director of Advocacy Services in the Ministry of Health who would be responsible for the purchase of advocacy services.

We believe this role would be open to political interference as the director would be a staff member of the Minister of Health. As well, the role is able to be delegated to any staff member of the ministry. The concept of an autonomous service-provision unit within the ministry is a contradiction. The ministry is not set up to manage or provide services.

We opposed the proposal that advocacy services be 'purchased,' that is, privatised, believing it to be important that advocacy services be professional and consistent, that the selection and training of advocates be consistently carried out and that advocates be adequately supervised and supported. These roles would formerly have been performed by the Health Commissioner.

The changes contained in the SOP would result in a completely unworkable relationship between the advocates, the director and the Health Commissioner.

The Code

The Code of Rights in the original bill which was to have been prepared by the Health Commissioner has now become a draft code to be forwarded to the Minister of Health. Any amendments must also be submitted to the minister for approval. These changes are vehemently opposed by Women's Health Action and will simply be seen by consumers as further evidence of how the independence and autonomy of the Health Commissioner has been whittled away.

The Complaints Process

Under the new provisions in the SOP the complainant has lost control over the way his or her complaint should be handled. The new provisions also mean that cover by the Accident Rehabilitation and Compensation Insurance Act (ARCI Act) debars most coverage under the Health Commissioner system.

Unlike the old Accident Compensation Act the ARCI Act provides minimal entitlements for consumers: no lump sum payments for pain and suffering and infinitesimal payment for loss of bodily function. The principle benefit of going to ACC is to try and achieve payment for medical treatment.

Women's Health Action maintains that it is manifestly unfair to force consumers to forgo the benefits of the Health Commissioner system when coverage under the ARCI Act is so poor.

Another change in the SOP is that on receiving a complaint involving a health professional, the Health Commissioner is now required to consult with health professional disciplinary bodies and to attempt to reach agreement on how the complaint should be dealt with. Most complaints would then be adjudicated by the disciplinary body. [Under the original bill, unresolved complaints went to the Equal Opportunities Tribunal (renamed under the SOP the Complaints Review Tribunal).] With the new system, only in 'special circumstances' would a complaint not go to the disciplinary body first. Only after a complaint has gone through the disciplinary process can it go to the tribunal.

We are opposed to tying the Health Commissioner to health professional bodies in this manner. These professional bodies were never set up to satisfy complainants. They are operated by professionals to maintain disciplinary standards for the profession. They do not make awards to complainants, only discipline members. The changes mean that people will be forced into health professional disciplinary processes that have no credibility in the eyes of consumers, and which most complainants experience as time-consuming and traumatic.

We strongly recommended a reversal in the process. The first port of call should be the Complaints Review Tribunal; after this, a complaint could be referred to the disciplinary body for it to decide on any disciplinary matters arising from the case.

In our submission to the Select Committee Women's Health Action made five major recommendations:

  1. Advocacy services must be provided by the Office of the Health Commissioner. A Director of Advocacy Services could be placed within that office, to provide a 'Chinese wall' between advocacy and the commissioner.
  2. The minister to whom the Health Commissioner reports should be the Minister of Justice, in recognition of the commissioner's primary concern for rights as opposed to health. This would enhance the independence of the commissioner and bring the office in line with the Privacy Commissioner and Human Rights Commissioner.
  3. Consumers should not be debarred from taking a complaint to the Complaints Review Tribunal by coverage under the Accident Compensation & Rehabilitation Insurance Act.
  4. Unresolved complaints should in the first instance be referred to the independent Complaints Review Tribunal. If a disciplinary matter is involved, the complaint can then be referred to the relevant disciplinary body.
  5. The Code of Health Consumers' Rights should be formulated by the Health Commissioner independently.

Health Commissioner Bill

The Health Commissioner Bill is still before the Social Services Select Committee more than two years after its introduction to Parliament, and there is no sign of it being passed either in its current form or with any of the changes suggested in Margaret Vennell's review of the Bill. No-one seems sure of the status of Margaret Vennell's recommendations, including members of the Social Services Select Committee, but the word is out that patient advocacy services will be separated from the Office of the Health Commissioner and be placed within the Department of Health.

Protection Needed

Women's groups around the country have consistently lobbied for the Health Commissioner Bill to be passed into law in its current form, believing that any changes subsequently found necessary could be dealt with at a later stage. They are supported in this by Helen Clark, Labour's spokesperson on Health, who spoke at a Patient Advocacy, Forum organised by the Hawke's Bay Women's Health Council in Napier at the end of November, 1992. Helen Clark told the assembled audience of over 80 people that the situation is becoming critical, and once the health changes take effect on 1 July next year, consumers will need more protection than ever before.

Lynda Williams, who was also asked to address the forum on the role of a patient advocate, echoed Helen's concerns. Emphasising the need for an independent service, she spoke about the difficulties of working as an advocate in isolation and without the support and back up of the Office of the Health Commissioner. She outlined the different advocacy services already in existence in the Waikato, Otago and Canterbury, and stressed the dangers inherent in having advocacy services being purchased by Area Health Boards or Regional Health Authorities.

Opposed to RHAs purchasing advocacy services Helen Clark repeated her concerns at the Medico-Legal conference held in Auckland at the beginning of March. In a strongly-worded speech she spoke out against the removal of advocacy services from the office of the Health Commissioner, and her opposition to Margaret Vennell's proposal that the patient advocacy service be either provided on a voluntary basis or Regional Health Authorities could be required to purchase advocacy services.

'If advocacy is to be both professional and valued, then advocates need recognition of that through proper remuneration for their work,' she said. And in response to the suggestion that RHAs be responsible for purchasing advocacy services Helen argued that this would create a conflict of interest. 'Regional Health Authorities will contract with providers. They have an interest in the providers which they fund having a good public image. It is unlikely that they will be enthusiastic about contracting patient advocates with a reputation for exposing wrong doing, negligence, or other defects in the providers' service,' she commented.

National Ethics Committee Needed

Helen Clark also addressed the issue of the need for a national health care ethics committee, an issue that was raised in the Vennell report. At present there exist 14 ethics committees established by the 14 Area Health Boards which have 50 per cent lay representation on them, in line with the guidelines issued by the Health Department several years ago. At the beginning of July there will be no Area Health Boards. Apart from the ethics committee associated with the Health Research Council, nobody knows what the future of the current ethics committees are likely to be.

In her concluding remarks, she stated that if the Government insists on proceeding with its health restructuring on 1 July, the need for improved complaints procedures is urgent.

'Commercialisation of the public health system will bring new pressures. Also the huge vacuum in the policy guiding national and regional ethics committees must be filled in the public interest. There must be foremost in legislation in these areas a commitment to protect the public interest and uphold the rights of all who use the health services.'

The Health Commissioner Bill and the Medical Practitioners Bill

It seems quite likely that patient advocates will be dumped from the Health Commissioner Bill.

This is despite the Cartwright Report and despite consumer support.

It is also despite support for the concept from Margaret Vennell, an associate professor of law at Auckland University, who was recently asked by Simon Upton to review the bill. Her report was released in September.

However, while Margaret Vennell said advocates were needed in the health system, she recommended altering the bill and removing patient advocacy services from the office of the Health Commissioner (which the Cartwright Report and consumer groups do not agree with). Her proposal could mean that it may be up to the individual Regional Health Authorities (RHAs) to decide whether they purchase advocacy services from commercial firms, rely on voluntary groups, or did not have advocates at all.

The Government may not require RHAs to purchase advocacy service. And already, at least one commissioner, we have been told has said that advocacy is 'a luxury' his RHA "cannot afford". Others might share his view.

Alternatively, the government could set up stand-alone advocacy services outside the office of the Health Commissioner.

Private advocacy services are not acceptable, because they need the weight of a commissioner behind them, and for training and monitoring, and to ensure a nationally consistent and effective service.

Also, because a private advocacy service is dependent for its continuance on the RHA, it is unlikely to want to rock the boat. Independence and fearlessness could not be guaranteed.

Neither are voluntary services acceptable. They would have grave difficulty achieving funding, and it would be impossible to set or monitor standards.

In 1988, The Cartwright Report advocated the creation of a Health Commissioner to shift the focus from the doctor to the patient. In 1990, the Labour Government acknowledged its findings and introduced the Health Commissioner Bill, which closely followed the recommendations of Judge Cartwright.

In the bill, the Office of the Health Commissioner was independent and autonomous. Its role was to appoint, train and run patient advocacy services, investigate complaints, and where there were unresolved, it could prosecute cases before the Equal Opportunities Tribunal. There was a provision for awarding compensation to complainants, although at too low a level. The bill covered all health care providers, some of whom, such as nurses, physiotherapists etc have weak or non-existent disciplinary bodies.

But, promises of immediate implementation have given way to political back-sliding, a tendency towards professional amnesia, and a regrouping of medical forces. And, two years of select committee hearings later, the consumer is no longer central to the legislation.

As Sandra Coney told a medico-legal conference in August, the medical unions, with the ear of the government, have slowly reasserted their commitment to maintaining what is essentially the status quo, while the consumer voice 'has been progressively marginalised, a process enhanced by the dissolution of democratically-elected area health boards'

The shift in balance was demonstrated, she said, when Simon Upton asked Margaret Vennell to review the bill and there was no mention at all of consumers. She was asked only to advise on the 'options that are open for the Health Commissioner to work with the medical profession…'

The proposed changes to the advocacy service, said Sandra Coney, also undermined the role of the Health Commissioner. The under-threat advocates were the commissioner's on-the-ground ear to what was happening in the health system. Without them, the commissioner would be dependent on members of the public laying complaints. This could only ever give partial, occasional glimpses of how well the system was doing on patients' rights. It 'reduces systemic flaws to individual problems' as generally occurred in the present system.

The Health Commissioner would also be undermined, she said, if the doctors succeeded in forcing complaints into their OWD disciplinary bodies. The commissioner must be able to prosecute unresolved complaints to an independent tribunal, with the ability to award adequate compensation to the complainant.

Labour's health spokesperson, Helen Clark, told a patient advocacy conference in Auckland in September that at a time when we are on the brink of huge changes to the public health system, which have major implications for patients' rights, 'the Government, like Nero, is fiddling while Rome burns.'

She called for the bill to be passed in its present form now, so a commissioner could be appointed, an advocacy service established, and work begun on the code of patients' rights.

"At a later stage, the Government could bring new medical disciplinary legislation to Parliament and deal then with consequential amendments, if required, to the Health Commissioner Bill.

'But, if decisive action is not taken now we will have no effective procedures for dealing with complaints about health professionals and services before at least 1994.'

Fertility Action agrees, as do all the consumer groups we are in contact with.

The Vennell Review…

…supported the need for an independent Health Commissioner (with an investigatory function), and said there should be a single entry point for all complaints about health care providers. Complaints not resolved at this level could go to a tribunal. A threshold could be set to prevent 'vexatious complaints'.

Margaret Vennell recognised an 'imbalance of power between the different groups of health professionals and health clients' which favoured the professionals, and that it needed to be redressed.

The imbalance meant, she said, that readily understandable information was not always given to health clients. This led to misunderstandings which could escalate to confrontation.

Minor difficulties should be stopped from becoming major. She recommended conciliation and prevention at the lowest possible level where it was quick and cheap to do.

She also said that information was therapeutic for clients.

Health Client Advocacy

Margaret Vennell was asked to examine the advocates' relationship to the Health Commissioner's office, and the options of operating either a health advocacy service, or a mediation service.

As discussed above, she said the advocates should be independent of the commissioner's office and could be purchased by the new RHAs. And, they should not compete with voluntary services, which might in many situations be better able to resolve an issue.

She said the advocacy service should be national and voluntary, and work for clients of all health providers however funded.

It should encourage clients to act as their own advocates, to become more hungry for information and to use the service. And, it should draw up its own guidelines which could be fully or partially in legislative form.

Funding of the service should be independent of health providers. But, if it was publicly funded, it should report to the Health Commissioner and be audited by the Health Commissioner, but be independent of the Health Commissioner (as above).

The Health Commissioner

Like the Cartwright Inquiry, Margaret Vennell identified the need for a commissioner and, she said, she had found a fairly widespread acceptance of such a need.

She said the commissioner should be pro-active and reactive, and set up an investigatory branch which could try to resolve complaints by conciliation, or refer them to another body for conciliation or resolution, including to the Accident Rehabilitation and Compensation Insurance Corporation.

If the problem was a question of health care standards or health discipline, the matter should be brought before the appropriate disciplinary body. If there was no such body the matter should be brought before a tribunal.

Margaret Vennell wanted the commissioner to be independent of all health providers and funders, including the Department of Health, to be responsible to the Minister of Health and funded through Vote:Health, and to be a separate office and not part of either the office of the Ombudsman or the Human Rights Commission

When set up, the commissioner should issue an annual Mission Statement, develop a constantly-reviewed Code of Health Rights, which should be seen as an integral part of the process of standard setting for the health care professions, and be a full member of all the professional standard setting committees.

The Role of the Health Commissioner
by Sandra Coney

(given at a National Medico-Legal Conference in August 1992)

Consumer groups had no faith in doctors' self-regulation, Sandra Coney told the conference. Nor in the marketplace model for health.

Yet, under National, the medical unions had managed to stall the Health Commissioner Bill because they found it 'too patient-oriented' and 'punitive to doctors'. They wanted unresolved complaints to be referred to the doctors' own disciplinary bodies, removing the final resolution from an independent tribunal, she said.

The doctors claimed their proposed disciplinary system worked well in Australia in Victoria and New South Wales. But, it had not. A former Victorian Health Commissioner had said, while visiting NZ, that the system had resulted in control of the complaint process being lost. And women's health groups reported that the system did not work well for the public.

If the NZ doctors succeeded, 'There would be less incentive for doctors to resolve complaints at mediation if they knew the next step was referral to their own forum,' she said. The doctors claimed that the health commissioner could not mediate, investigate and prosecute, and remain impartial. Yet, that was precisely what the Human Rights Commission (HRC) did without accusations of bias, she said. And, as with the HRC, the final decision would lie with an independent tribunal, not the prosecuting body.

The Cervical Cancer Inquiry had shown that lay people could understand complex matters. If necessary they could call expert witnesses. 'The argument that only doctors can adjudicate is simply an attempt at preserving medical control.'

The doctors, however, were currently discrediting their stand for their own disciplinary processes. 'At the moment all cases before the Medical Disciplinary Committee are proceeding in the absence of the solitary lay member, because she is on maternity leave for some months. One has to ask how seriously these committees take the presence of lay members when they fail to replace them over such a long period.'

Sandra Coney was also critical of the market model for health care. The marketplace did not naturally protect consumers, or ensure quality, or give people what they wanted, she said. And, the fundamental ethical imperative of National's marketplace model was 'caveat emptor' -let the buyer beware.

Not only that, National's version of the health market place Dr was flawed. In reality, selling was achieved by putting buyers and sellers together. In the new health sector the purchaser was not the consumer, but a third party, the Regional Health Authorities (RHAs), who also had to buy within Government-set budgets.

And the seller/providers to the RHAs, eg private advocacy services, were more likely to try to win and keep their contracts with the RHAs than to try to accommodate the wishes of unorganised individual members of the public.

The market model had also dominated the health care debate, said Sandra Coney. The discussion had been solely about sources of funding, and increased competitiveness and efficiency, to be measured principally in terms of cost and through-puts. Ethical issues had been absent from the current discussion.

'As it stands, the government appears to be prepared to go ahead without any safeguards for patients' safety and rights in place," she said. It was not clear who would be responsible for seeing that these aspects of health care were implemented and monitored. It was the area health boards, but they were to be replaced by the RHAs who had no brief to deal with ethics or indeed complaints.

The Health Commissioner Bill was also needed, Sandra D, Coney said, because the new accident compensation legislation had virtually abolished the right to compensation. This especially affected women who frequently suffered injuries, such as the loss of organs or of fertility, through medical misadventure, which could result in a loss of organs or fertility, but not the ability to earn a living.

The Doctors' View

Two leading doctors told the conference that doctors wanted to keep the discipline of doctors in doctors' hands.

Dr Stewart Alexander, former chairman of the Medical Council of NZ, said, that the disciplinary functions of both the Medical Council and the Medical Practitioners Disciplinary Committee should be handled by a new and separate Medical Practitioners Disciplinary Tribunal, 'somewhat similar to the Law Practitioners Disciplinary tribunal'. The tribunal would be supported by a Complaints Assessment Committee, which would receive, examine and assess complaints.

The committee and tribunal would have an independent Discipline Secretariat and appropriate investigative staff, he said.

Doctors could not agree, he said, whether the proposed tribunal should have a legal chairperson, but most agreed that it should have 'a substantial, 50% lay membership'.

Dr Alister Seott, chairman of the NZ Medical Association, commented that the public was losing faith in what seemed to be a profession-dominated disciplinary process, but doctors were 'also disenchanted with a system which was seen as treating them harshly in an effort to appease public opinion.'

As the police had concluded that overall responsibility for discipline should remain with the Police Commissioner, he said, doctors believed that the 'ultimate responsibility for discipline within the medical profession must remain with the Medical Council, within the nursing profession with the Nursing Council, and so on.'

The Equal Opportunities Tribunal or the Human Rights Commission might be appropriate to hear complaints about health care institutions, but not about individual health care providers.

His association had already moved to distance itself from the complaints procedures so that the disciplinary process could be seen as fair, he said. With the Medical Council, it had established an independent discipline secretariat.

However, he conceded that its new machinery still lacked the important component of conciliation, and it lacked the true independence that would be 'seen to be provided by a Health Commissioner'.

'The NZ Medical Association is thus in full agreement with the concept of a Health Commissioner,' he said, but it preferred the Victorian version to that proposed in the Health Commissioner Bill. There, the commissioner emphasised conciliation and had to give complaints over to the doctors' appropriate registration boards.

And, the commissioner was supervised by a Health Services Review Council which had nine members - three health providers, three users, and three attached to neither of those two groups. 'This provides a most significant safeguard against the commissioner being 'captured' by particular interests within the health field,' he said.

In contrast, NZ's bill had 'an unfortunate overall perspective', which his association believed would 'have the effect of engendering defensive attitudes in health care providers' thus causing the bill to fail.

Its 'overtly adversarial climate' was 'underlined by the choice of the terms 'Health Consumer Advocacy Service', 'health consumer advocates', and by the emphasis put upon the possibility of taking proceedings to the Equal Opportunities Tribunal.'

He strongly urged that all such references be removed and replaced with 'Health Conciliators', like Victoria.

'There may well be a place for patient advocates within the health system. One should point out that both doctors and nurses regard themselves as being exactly that, but one accepts without cavil the need for some patients to have a friend to assist them in redressing the power imbalance that may occur in the day-to-day operations of a health service. This function is quite separate from the conciliator's function, however,' he said.

Dr Scott wanted the commissioner to be 'Parliament's person', not under the control of the Minister of Health, whose actions the commissioner might need to review.

Health Commissioner Update

Simon Upton has recently commissioned an options paper on the Health Commissioner Bill introduced in 1990 and still with the Select Committee. Lawyer Margaret Vennell has been appointed to undertake this task and report back to Simon Upton within a month. Margaret Vennell is a senior lecturer in law at the Auckland University and specialises in the areas of accident compensation and medical misadventure. She was formerly on the board of the Accident Compensation Corporation and a lawyer with the Law Commission.

She will be talking to people around the country during her review. Her task is to ascertain what type of system will work best in New Zealand, whether we adopt a mediation type of service or a advocacy model, a Code of Rights model or a public interest model like the one in New South Wales.

Catherine Marshall, a policy analyst with the Health Department, visited Australia in April to look at how the complaints systems work in both Victoria and New South Wales. This trip followed a visit to New Zealand in March by both Dr Ian Siggins, the Victorian Health Commissioner, and Merrilyn Walton, Director of the Health Complaints Unit of New South Wales to address the Select Committee considering the Health Commissioner Bill.

Catherine Marshall considers that both systems work well, although there is more support from the doctors for the Victorian model. However, the Social Services Select Committee here in New Zealand appears to be more in favour of the NSW Complaints Unit system, a prosecutorial system which acts as the principal investigator of all complaints against registered health professionals.

It has been reported that the Select Committee plans to deal with the Medical Practitioners' Bill when it has finished with the Health Commissioner Bill.

In the meantime pressure must be maintained on the government to support the Health Commissioner Bill in its current form.

Health Commissioner Bill in Jeopardy

Over two years ago, in September 1990, the Health Commissioner Bill was introduced to Parliament. This was a follow-up to Judge Silvia Cartwright's recommendation after the Cervical Cancer Inquiry. Next there was a change of government, and the bill is still before the Social Services Select Committee. Fertility Action gave its submission nearly a year ago. Why the delay?

The bill in its current form would establish the office of the Health Commissioner and a Health Consumer Advocacy Service which would cover all providers of health care from doctors to physiotherapists, therapists and counsellors. The Health Commissioner would also be charged with drawing up and implementing a national Code of Rights for health consumers. He or she would have the ability to refer unresolved complaints to an autonomous tribunal for a final decision, which could award compensation to a complainant. This is the sticking point for some health professionals.

It doesn't suit doctors

The medical profession and, in particular, the New Zealand Medical Association has strenuously opposed the bill. It does not want an autonomous complaints system, independent of professional disciplinary systems. It wants complaints which cannot be resolved by the Patient Advocacy Service or mediation to be handed over to the Medical Council and the Medical Practitioners' Disciplinary Committee. Consumer groups contend that this would be a disaster, effectively neutering the bill. The medical practitioners' systems exist to regulate professional standards and thus have a different function. They do not exist to meet the needs of consumers, but of the professionals.

The medical profession has been vigorously, and it seems successfully, lobbying the government in an attempt totransform the model from a patient-orientated model to one that suits it better. They have therefore pointed the government's attention towards other systems such as the Victorian Health Commission in Australia. Whether this strategy will be successful may depend on the outcome of a recent visit by both Dr Ian Siggins, the Health Commissioner from Victoria, and Ms Merrilyn Walton, the Director of the Health Complaints Unit in New South Wales.

Katherine O'Regan invited both Ian Siggins and Merrilyn . Walton to Wellington to advise the Social Services Select Committee on the Health Commissioner Bill. During this visit Ms Walton and Dr Siggins led a workshop for consumer and provider groups with an interest in the issue.

The workshop was opened by Katherine O'Regan who explained that Merrilyn Walton and Ian Siggins had spoken to the Select Committee the previous day. It became clear that the government is looking to the Australian models and Katherine O'Regan stated that they are keen to learn from the Australian experience. Her comment that in hearing from the Australians u we can learn whether it (the present Health Commissioner Bill) is the right piece of legislation" should give cause for concern.

What happens in Australia

The Australian models are very different to what has been proposed for New Zealand and have major drawbacks compared to what is proposed here. The Complaints Unit in New South Wales focuses on standards of health care, accountability of health professionals and institutions, and how breaches of standards are dealt with. Merrilyn Walton emphasised that the Complaints Unit is there to protect the public interest, not an individual person. When a complaint is unable to be resolved locally or the Unit believes that a public interest issue is involved, the Unit takes up the issue with the relevant body, whether the complainant wishes it or not. The health consumer may appear as a witness. There is no process for obtaining financial recompense through the New South Wales Complaints Unit, although the power to sue is an option in New South Wales.

The health consumer groups represented at the workshop felt very strongly that the NSW model seemed too much like peer review of the medical profession. A case could be made for the establishment of a similar process in New Zealand which would take the place of the current medical disciplinary procedures. This could function along with the client-centred Health Commissioner service outlined in the current Bill. The existing medical disciplinary procedures are basically self regulation by the medical profession, a system that Merrilyn Walton stressed would not be accepted by the general public in New South Wales.

The Victorian Health Commissioner was appointed at the beginning of 1988. This service has a broad jurisdiction which covers both mainstream and 'alternative' health care providers as well as the public and private sectors. The commission also operates a state-wide telephone service. Verbal complaints are written down and checked and signed by complainants before being sent in the first instance to the health care providers who are invited to resolve the complaint directly. The Health Commissioner has no power to make decisions about health care providers where there is a professional registration board, such as is available with doctors.

The Victorian Health Commissioner can also take up and investigate complaints about its Health Department. In terms of autonomy, the Victorian Health Commissioner functions more like an Ombudsman.

Ian Siggins outlined some of the problems with the current situation such as having to refer complaints to the relevant registration board and then losing control over what action is taken. Changes are in the pipeline that will mean in future all complaints will be lodged with the commissioner. At present the commissioner must send copies of all complaints to the registration board, but the board does not have to advise the commissioner of the complaints they have received.

The other major difference between the two Australian systems is that unlike the NSW Complaints Unit, the Victorian Health Commission can be involved in negotiating financial compensation when this is sought by the complainant. Ian Siggins stated that the commission is able to function as an alternative to litigation which is far quicker, cheaper and more humane.

Both Merrilyn Walton and Ian Siggins spoke enthusiastically about the patient advocacy service that New Zealand's Health Commissioner Bill would provide and Merrilyn Walton referred to the fact that our bill , represents a system that ' is much further down the track than the NSW model' . The lack of such a service in NSW has resulted in the formation of a self help group that formed to support people going through the complaints process. Ian Siggins also referred to the need for advocacy support for consumers in Victoria, a need which became evident within a year of the establishment of the Victorian Health Commission. Patient representatives now exist in many Victorian hospitals.

Saving the bill

Consumer groups and patient rights groups throughout New Zealand have expressed their support for the Health Commissioner Bill in both written and verbal submissions to the Select Committee. It is therefore very worrying to have the Associate Minister of Health signalling her interest in making dramatic changes to the bill at this late stage in the proceedings. The time for making written and oral submissions has passed. It is imperative that consumer groups keep up the pressure on the government by writing to their local MPs and to all three Ministers of Health assuring them of their continued support for the Bill in its current form.

Health Commissioner Bill

The Health Commissioner Bill was introduced into Parliament in September last year. The Bill is currently before the Social Services Select Committee who have finished receiving written submissions.

The Health Commissioner Bill aims to implement recommendations made in the Cartwright Report regarding patients' rights and patient advocacy.

The Bill establishes the office of a Health Commissioner, who will investigate any complaints against doctors, hospitals and other health professionals (eg physiotherapists, nurses, osteopaths, registered psychotherapists) and prepare a code of Health Consumer's Rights. The Bill also establishes a Health Consumer Advocacy Service. Health Consumer Advocates will be able to take up health consumer complaints close to the source and work to resolve complaints against health care providers.

The Health Commissioner will have the power to make recommendations to health care providers or institutions regarding a complaint and preventing any repetition of similar incidents, as well as being able to refer a complaint to the Equal Opportunities Tribunal. The Tribunal can:

  • declare any action to be breach of the Code of Health Consumer Rights;
  • make an order restraining continuation or repetition of any such breach;
  • award damages in line with the Equal Opportunities Tribunal;
  • make an order for action to redress any loss or damage suffered by an aggrieved person.

The Bill is comprehensive in its coverage. It includes all private and public hospitals, aged persons homes, psychiatric hospitals and institutions for the care of intellectually or physically disabled persons.

The New Zealand Medical Association, the major voice for doctors, has various objections to the legislation. It argues that there is no provision for appeal against an order, but the NZMA appears to be misguided in this opinion. It quotes Section 55 of the new bill in support of this view, but this section of the bill applies only to procedural aspects of the commissioner's work, not the substance of a claim. The right to appeal is covered in Section 45 of the bill which gives the office of Health Commissioner the same powers as Section 63 of the Human Rights Commission Act which covers the right to appeal. It is also worth noting that there are several levels of investigation and negotiation before a complaint might be referred to the tribunal for adjudication, at all of these levels a doctor complained about would have a say.

The NZMA is also upset that there is no obligation to consult with the Medical Council. It would prefer a system where complaints which are not resolved by mediation are referred to the existing medical disciplinary structures. But the whole point of the legislation is to establish an independent and credible system of adjudicating on patient complaints. Consumers have long complained about the self-serving nature of the current medical disciplinary system and recent decisions (such as the light penaltiies meted out in the cases of Professor Bonham and Dr Laurie Gluckman) have operated to confirm the public's lack of confidence in the doctors' self-policing system. There is of course no reason why the Health Commissioner's office would not consult with the Medical Council where appropriate, but equally there is no reason why it should be 'obligated' to do so in all cases. In fact, the legislation does enable the involvement of bodies such as the Medical Council where appropriate. Section 33 of the bill gives the commissioner the right to convey her/his opinions and recommendations to 'any health professional authority', area health board or other person. As well, Section 35 gives the commissioner the right to refer any complaint to any health professional authority, or to help a complainant take a complaint to one of these authorities.

The NZMA says it is 'repugnant to justice that more than one tribunal can investigate the same complaint', but there are already precedents for this -for instance, a doctor censured by the Medical Council could subsequently be the subject of criminal charges, such as manslaughter, assault or rape. The same cases are not infrequently investigated by both the Medical Council or Medical Practitioners Disciplinary Committee and the Accident Compensation Corporation. In Australia, at the Royal Commission looking into the use of 'deep sleep' therapy at Chelmsworth private hospital criticised individual doctors but also asked the police to investigate them. Some of these doctors had already gone through civil hearings and damages had been awarded. Different tribunals have differing powers. The office of Health Commissioner cannot withdraw registration from a doctor - it would be necessary for such a case to be referred to the Medical Council for further investigation and possible deregistration.

The NZMA also complains that the commissioner has wide powers of discovery, including search and entry. This does seem unnecessary - the power to require production of relevant documents should be sufficient. The NZMA says that: 'The mechanism of trial by a Tribunal of Ministerial nominees with no professional representation would allow government control of the profession to a degree previously unparalleled.' This seems to be the crux of the objections. The medical profession is objecting to the removal of the power to discipline from itself.

Meanwhile, women's consumer groups and patient rights groups are very supportive of the Bill and are hopeful that it will be passed soon. There have been some ominous rumours that the relevant ministers prefer a watered-down form of advocacy such as exists in the Waikato region rather than Judge Cartwright's 'powerful and independent' advocates for the people, and there has been a rather worrying silence about progress on the Health Commissioner Bill. It will soon be three years since the Cartwright Report was released and there is still no Health Commissioner.

The Auckland Area Health Board took up the recommendation in the Cartwright Report that a Patient Advocate should be appointed at National Women's Hospital. Lynda Williams has now been in this position for 18 months at Greenlane/National Women's Hospital.