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A Time for Review - Is the Health and Disability Commissioner Act Working?

Presentation to the 7th Annual Medico-Legal Conference

22 - 23 February 1999

Robyn Stent
Health and Disability Commissioner

1. A time for review

I am currently undertaking a review of the Health and Disability Commissioner Act and the Code of Health and Disability Services Consumers' Rights. The Act requires me to carry out these reviews, consider whether any amendments to the Act and Code are necessary or desirable, and report my findings to the Minister of Health. This is only the first step in a process that may eventually lead to changes to the legislation. Once I have reported to the Minister, any recommended changes are again considered as part of the normal legislative process. There will be an additional opportunity to comment before a Parliamentary Select Committee before any amendments to the Act become law, and any proposals for amendment to the Code must be approved by Cabinet.

Last week, my office published a public consultation document on the review of the Act and Code. This contains discussion and recommendations based on my own experience of the operation of this legislation, as well as feedback received from providers, consumers and others. One of the fundamental questions I had to consider when writing this document was "are the Act and Code working?" Another question was "is the way this legislation works understood?" I have just started a series of consultation meetings and hui around the country at which the review document - and these two questions - will be publicly discussed. This conference also provides a timely opportunity to discuss some of the key issues arising from the review.

2. The Act and its purpose

This morning I will focus mainly on those aspects of the Health and Disability Commissioner Act which I consider need changing, and address particular issues that have arisen in respect of its interpretation and application since it came into force. There are a number of aspects of the Act that I believe could be changed to improve my ability to meet its purpose. These include amongst other recommendations the need for greater flexibility and powers on receipt of a complaint, a structural change to the operation of advocacy services under the Act, and the requirement of a provision to explicitly protect information obtained by the Commissioner in the course of an investigation.

In addition, I would like to comment on the challenges presented to the effective functioning of my office when the exercise of the Commissioner's powers become the subject of public debate. In recent months this has included debate in Court as well as in the less formal domain of the media, particularly in respect of the Commissioner's power to make public comments about the outcome of investigations.

Before addressing these issues, it is helpful to look again at the purpose of the Act, which is set out in section 6 as:

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

Promotion and protection

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

Fair, simple, speedy and efficient resolution

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

Some of you may be unfamiliar with the role of advocates. Their function is to take the side of the consumer to assist low-level resolution of complaints directly with the service provider. Advocates are therefore not impartial and their role is not to be confused with that of mediator. Nor are they investigators. Rather, it is the Commissioner's role to investigate to determine if there has been a breach of the Code, and for this reason the advocacy services and the Commissioner operate independently of each other.

3. Advocacy services

At present, the Act provides for the appointment, by the Commissioner, of a Director of Advocacy, whose functions primarily involve the administration and monitoring of advocacy services contracts, and who acts independently of the Commissioner. This independence was introduced into the legislation to protect the Commissioner's impartiality when investigating and mediating complaints. Although I consider the balance currently struck in the legislation between independence and the Director's responsibility to account for efficient, effective and economical management is appropriate, in my view the present structure for the provision of advocacy services themselves is cumbersome.

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

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

This duplication cannot be remedied by the Director engaging a single advocacy service provider. A better and more efficient arrangement would be for the Act to provide for advocates to be employees of the Commissioner, but to have a statutory requirement to operate independently of the Commissioner and subject to the supervision and control of the Director of Advocacy. The advocates would then operate as a single national service. I have recommended this in my review.

4. Striking a balance: achieving "fair, simple, speedy and efficient" resolution within available funds

One of the biggest challenges in exercising my role as Commissioner is achieving an appropriate balance between the various components of the Act's purpose. As time goes on, not only has the volume of complaints to my office increased, but so too has the seriousness and complexity of these complaints. Results can only be achieved within the limits of available funding and given current levels of funding, inevitable delays will arise.

Inevitably, both providers and consumers have expressed to me their concerns about the length of time taken for investigations. This is a fair comment and I am continually looking at ways to reduce the time taken to process complaints. However, it must be recognised that 's peedy' investigations are just one part of the Act's aim. A balance must always be struck between simple, speedy resolution, and achieving a fair result. The Act seeks to ensure the latter by setting out a number of procedural safeguards for those being investigated and this is entirely appropriate. The results of an investigation can often be of considerable significance for those concerned. It is unrealistic to suppose that a fair result will always be a speedy result.

Other agencies have dealt with similar difficulties by introducing a waiting list before complaints are dealt with, sometimes in excess of 12 months. In my view, a waiting list is not an appropriate solution under the Health and Disability Commissioner Act, given its wider concern to protect the public from unsafe services. Consequently, either expectations of a speedy resolution must be more realistic, or funding must be increased. I recognise there are limits to the resources available. In light of this, many of the amendments I have suggested in my review focus on conferring sufficient flexibility on the Commissioner to enable the Act's purpose to be achieved in a realistic and effective way.

5. Commissioner's options on receipt of a complaint

I have found that one of the most problematic features of the current Act is the limited number of actions the Commissioner can take on receipt of a complaint. Currently, section 36 gives me discretion, on receipt of a complaint, to investigate to determine if there has been a breach of the Code, refer the matter to advocacy or mediation, or take no action at all. However, the grounds on which I can decide to take no action are limited, and the remaining options may not always be the most appropriate in the circumstances. I believe increased options are needed. Increased flexibility is consistent with the requirement that the Commissioner keep in sight the bigger picture of long term change necessary in the sector so that the rights of all consumers might be protected. The Commissioner must not be allowed to become so inundated with complaints that he or she is unable to fulfil this broader function.

I therefore suggest that additional options be available to the Commissioner when complaints are received. In particular, I consider that section 36 should be amended to include further options allowing referral to mediation, to a health professional body, and to the service provider.

Mediation

My experience is that some disputes lend themselves more to mediation than advocacy. Mediation involves attempting to resolve the matter through the facilitation of an impartial mediator. Currently a mediation conference can only be called once an investigation is underway. However, in many situations it is clear from the outset that mediation would be appropriate. Examples include where the ongoing relationship between the parties requires a formalised agreement as to the future delivery of services, or where the parties have extensively attempted to resolve the complaint and all information has been provided to the Commissioner, or where advocacy has been unsuccessful at achieving resolution, also resulting in extensive information being available to the Commissioner. I therefore recommend that mediation be an option available immediately on receipt of a complaint.

I also consider that where a mediation conference is held, the Commissioner should have discretion to require providers to contribute to its cost. In some cases where I call a mediation conference, the provider has taken insufficient steps to fulfil their legal obligation under the Code to 'facilitate the fair, simple, speedy and efficient resolution of complaints' , and it seems fair that a contribution to the cost of mediation be paid by them. Recently, in a case where mediation was unsuccessful, I concluded my opinion with a recommendation that the provider contribute to the consumer's costs, as, in my view, the provider had not approached the mediation conference in good faith. This was not only a breach of the provider's obligations under the Code of Rights, but also thwarted the purpose of the Act and added to the consumers' financial and emotional costs.

Referral to health professional bodies

At present the Commissioner's ability to refer complaints to the health professional bodies for investigation is limited, especially if the Commissioner is to maintain a watchdog role over the complaint as the Act intends. The role of independently investigating complaints was, after all, given to the Commissioner because of dissatisfaction with the old system of investigating by the professional bodies themselves. As you will probably be aware, the Health and Disability Commissioner Act suspends the ability of health professional bodies to take disciplinary action against a provider until I, or the Director of Proceedings, advise that no further action is to be taken under the Health and Disability Commissioner Act.

I consider there is scope for greater involvement of health professional bodies in the investigation of complaints. In particular, it would be useful if the Act gave the Commissioner a discretion to refer selected complaints to professional bodies for action on receipt where the Commissioner considered this would be useful in the first instance. I recommend that the Act include this option, with the requirement that the professional body report back to the Commissioner within a reasonable time on the action taken and consult if disciplinary proceedings are contemplated. This latter requirement will ensure the Commissioner maintains the necessary watchdog role and will enable an investigation to be undertaken if the result of the referral is unsatisfactory.

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

Referral to the provider

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

To deal with these situations, I believe that the Commissioner should have the option of referring the matter directly to the provider for resolution, with the requirement that the provider report back to the Commissioner within a reasonable time on any action taken to resolve the complaint. A report is necessary to allow me to ensure the matter is resolved. This option would enable providers to put their obligations under the Code and Act into practice - that is, attempt to resolve complaints directly.

Grounds for taking no action

I also recommend that the Commissioner be allowed greater discretion to decline to investigate.

Presently, section 37(1) sets out a list of criteria that enable me to decide not to take any action on a complaint. These include situations where the subject matter of the complaint is trivial, or the complaint is frivolous or vexatious, or because of the length of time that has elapsed between the incident and the making of the complaint. Section 37(2) allows me to decide to take no further action on a complaint if, in the course of investigation, it appears to me, having regard to all the circumstances of the case, that any further action is unnecessary or inappropriate.

In a few cases - such as where the same complainant has previously made a series of complaints, or where the matter has already been to advocacy or to the provider and the provider has done everything reasonably possible to put things right with the consumer - I might discern on receiving a complaint that it would not be an appropriate use of resources to commence an investigation. However, I am currently unable to refuse to investigate outright unless one of the reasons in section 37(1) is established.

Accordingly, I recommend that the Commissioner should have discretion to take no further action on a complaint where it is considered unnecessary or inappropriate, whether or not an investigation has commenced. This option would therefore be available where some action under the Act has already been taken, for example, where the matter has already been to advocacy, there are no public safety issues involved, and further action seems unnecessary given the time and resources already spent on the matter. The alternative is for a decision to take no further action to be based on the ground that the complaint is "trivial" (s37(1)). While an outsider may view a complaint in this way, this is seldom true for the parties themselves and to rely on this ground may aggravate the situation.

6. Collection, release and protection of information

In addition to achieving flexibility in dealing with complaints, I would like to see some changes to the Act to ensure the investigation process itself is kept as simple as possible within the requirement to achieve a fair outcome. In particular, I would like to see explicit provision in the Act protecting information obtained during an investigation from release. However, before I go on to discuss this in more detail I would like to recall by way of introduction just what the Commissioner's powers are to require the production of information.

Evidence

Section 62 of the Health and Disability Commissioner Act governs the collection of information by the Commissioner. It allows me to require information or documents relating to a matter under investigation to be produced and, where necessary, to summon and examine persons under oath.

From time to time, in response to requests for information, providers mistakenly argue that they do not have to produce information held by them about consumers, and required by the Commissioner, because to do so would be contrary to the Privacy Act. This is not so. Section 7 of the Privacy Act makes it clear that nothing in the Privacy Act prevents the disclosure of information where disclosure is required by law. Section 62 is such a requirement.

While the operational problems that this misunderstanding has caused on a day to day basis have lessened as providers become more familiar with the Act and the powers of the Commissioner, I nevertheless think it would be beneficial for Parliamentary Counsel to look at this provision together with others relating to the privilege and protection of information, to see if they can be simplified and/or clarified.

The need to protect information

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

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

In my view the Commissioner should be in the same position in this regard as other agencies such as the Ombudsman and the Privacy Commissioner. Information obtained during an investigation under the Health and Disability Commissioner Act is of equal sensitivity and need of protection as that obtained by these other agencies. While I recognise the need to provide sufficient information to enable the provider being investigated to respond, and indeed am required to do so by the Act, I do not consider I am able to fulfil my functions and meet the Act's purpose as Parliament intended if I am unable to protect information obtained during an investigation. Much of this information is supplied in the strictest confidence, or only because I compel its production.

In my review I therefore recommend that the Act be amended to include a secrecy provision, along the lines of that in the Privacy Act, to protect information supplied to the Commissioner during an investigation from release. This provision might usefully be placed after section 65, which presently deals with various privileges available to the Commissioner, the advocates, and those engaged or employed in connection with the work of the Commissioner.

7. The content of the Code - s20

So far, my comments today have focused on my recommendations in respect of the Health and Disability Commissioner Act. As I mentioned earlier, I am also presently reviewing the Code of Rights. By and large the Code has worked satisfactorily and my recommendations for amendment are points of 'tidying up' only and do not involve matters of fundamental concern. I believe that this is testimony to the thorough public consultation process that took place when the Code was drafted three years ago.

The Act, of course, governs the content of the Code and I would like to comment briefly on two matters which are not currently in the Code but in respect of which I have received comment since the Code came into force.

"Provider rights and consumer responsibilities"

Section 20 provides for a Code relating to the rights of health and disability service consumers and the obligations of health and disability service providers. It does not enable the inclusion of provisions relating to the duties and obligations of consumers, or the rights of providers.

Nevertheless, many provider groups feel strongly that the Code is unbalanced or unfair without reference to consumer responsibilities. The concern has been expressed that without full participation and co-operation by consumers the overall quality of service is affected, and that the pendulum has now swung too far in favour of consumers at the expense of providers. In response, some providers have prepared their own codes or charters of consumer responsibilities and provider rights, albeit without legal effect.

My view is that no change to the Code should be made in this regard. The Code and Act are consumer law and seek to promote and protect consumer rights for very good reason. It is indisputable that an imbalance exists between providers and consumers, arising from a lack of information and from the consumer's inherent vulnerability when receiving health and disability services. In recognition of this imbalance, the Act seeks to negate some of its potential effects. By providing for consumer rights in the Code, the Act aims to foster greater partnership between providers and consumers, thereby improving the quality of services. Further, the Code brings together many of the obligations which were already imposed on providers by legal, professional and ethical standards and so clarifies the requisite tools of good professional practice.

Consumer responsibilities referred to by providers are dealt with in other pieces of legislation, for example the obligation not to subject providers to physical attack. Furthermore, the Code already enables me to consider the actions of the consumer when forming an opinion on whether there has been a breach of the Code. Clause 3 makes it clear that a provider will not be in breach where reasonable actions in the circumstances have been taken to meet the Code. The 'circumstances' includes a consideration of the consumer's involvement in events.

Access to services

Another criticism of the Code which comes up from time to time is that it does not contain a right to access services. It has been suggested that the Code should include the right to receive particular services free of charge.

Section 20 as it currently stands does not address which services are to be funded by public funds. Rather, it is concerned with how services are delivered. Decisions on what services are to be provided through public funding are made by the State, through the Health Funding Authority, ACC or other governmental agencies, such as those in the education and income support areas.

I do not consider that the role of the Health and Disability Commissioner should be to make these kind of funding or access decisions. This is a matter which is addressed under the Health and Disability Services Act 1993 and other legislation. The Health and Disability Commissioner Act, on the other hand, focuses on consumer rights to quality services. For reasons of resources and accountability, it would be unhelpful to blur this distinction.

8. Going public - the Commissioner's ability to comment

Before I conclude today, I want to discuss a matter which, as I mentioned at the outset, has presented yet another challenge to the effective functioning of my office. This has not arisen from any inflexibility in the Act itself, but from the legitimate exercise of my existing power under the Act to make public comment about the outcome of my investigations.

I believe the Commissioner's power to make public statements, which includes releasing the names of providers who have breached the Code, is a very important one and I have not been afraid to use this power where, in my view, the public interest so requires. However, dissatisfaction with my processes, the outcome of investigations, or my decisions to make outcomes public has sometimes resulted in providers turning to the media to express their views. As a result misunderstanding about the role and powers of the Commissioner has been perpetuated. For instance, a recent letter to NZ Doctor from one GP I was investigating queried the legality of my process and my accountability to the Minister and the public, suggesting that I was the epitome of unbridled power. Another letter writer chastised me for criticising the Minister of Health for pre-empting my report on Canterbury Health Ltd with one of his own, saying "Does her powers (sic) exceed those of the minister's ?"

Complaints such as this make good copy but represent only one side of the story. While providers enjoy the right to free speech to the full, I have to think beyond my immediate interest in justifying my decisions or procedures before I respond. If the investigation is still in process it is unfair to both parties for me to comment as I cannot predict the outcome until all the facts are in. Even at the conclusion, I have to consider the impact on the provider's livelihood, on subsequent proceedings and on the often vulnerable consumer before making public statements.

However, I am becoming convinced that I should begin to publish the full facts of every breach case, naming the provider, so that the public and the profession can decide for themselves whether my decision was fair. In cases where the provider has chosen to make public statements prior to the release of the opinion (or outline their own version of events without releasing the finalised opinion in full) this would provide much needed balance. Determining a fair outcome requires sensitivity and patience, not a bull-at-a-gate approach, and I will not be swayed by providers, consumers or politicians who place haste over thoroughness where the Commissioner's investigations are concerned.

9. Conclusion

Parliament passed the Health and Disability Commissioner Act to establish an independent Commissioner and a complaints process free of political influence, strong enough not to be stood over by the various health professions and broad enough to encompass every provider in the health and disability sector. I hope that the current review will result in changes which will make the ongoing operation and application of this legislation more effective and efficient, and the powers of the Commissioner more flexible, in order that the Act's purpose of promoting and protecting consumer rights can continue to be met.