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Clarification of the role of the Director of Proceedings

1. Who is the Director of Proceedings and what is the Director's relationship with the Commissioner?

The Director of Proceedings is an independent statutory officer under the Health and Disability Commissioner Act 1994, appointed by the Commissioner but independent of the Commissioner in the exercise of his or her functions under the Act (section 15). However, while the Director's functions are exercised independently, the Director is nevertheless responsible to the Commissioner for the efficient, effective and economical management of the Director's activities. This accountability is understandable given the Commissioner's ultimate responsibility for funds allocated under Vote:Health to achieve the Act's purposes.

My experience is that many people still do not understand this independence - the role of the Director is often confused with that of the Commissioner. While both operate under the Health and Disability Commissioner Act and play a part in achieving its overall purpose, they maintain separate files and their functions and powers are different. While the focus of the Commissioner must be squarely on the Code, as Director I must also consider whether the conduct in question breaches professional standards.

The independent roles of the Commissioner and Director have recently been affirmed by the High Court in Health and Disability Commissioner v The Medical Practitioners Disciplinary Tribunal (HC, 9/12/1998; Ellis J, Wellington, CP 141 & 177/98). His Honour Justice Ellis stated:

"The Director is appointed by the Commissioner under s15, which provides:

15. Director of Proceedings

(1) For the purposes of this Act, the Commissioner shall from time to time designate as the Director of Proceedings one of the persons appointed under clause 2 of the Second Schedule to this Act.

(2) In exercising or performing the powers, duties, and functions of the Director of Proceedings under this Act, the person for the time being designated under subsection (1) of this section shall not be responsible to the Commissioner but shall act independently.

(3) Nothing in subsection (2) of this section limits the responsibility of the Director of Proceedings to the Commissioner for the efficient, effective, and economical management of the activities of the Director of Proceedings.

(4) No person shall hold, at the same time, a designation under subsection (1) of this section and a designation under section 24 of this Act.

It is important to emphasise that in her function as a prosecutor she is independent of the Commissioner. Once a matter is referred to the Director under s45, she must decide what action to take "glainly the Director compiles her own file as a prosecutor in these two cases, starting with the information obtained in the way described by the Commissioner. So there are two distinct files, that of the Commissioner and that of the Director. " (pp 8 and 9)

2. The role of the Director of Proceedings

The Director's role, on referral from the Commissioner, is to decide whether proceedings should be initiated in respect of the matter referred. The Commissioner has a number of options where she is of the opinion that there has been a breach of the Code, including referral to the Director for this purpose (section 45(f)). The principal forums in which proceedings may be brought are the Complaints Review Tribunal and the various health professional disciplinary bodies. It is up to the Director to decide what, if any, action to take and a decision may be made to take action in both the Complaints Review Tribunal and the health professional bodies.

The Complaints Review Tribunal

The Complaints Review Tribunal is established under the Human Rights Act 1993 and hears proceedings brought under the Human Rights Act, the Privacy Act and the Health and Disability Commissioner Act. Where I commence proceedings in the Tribunal, the Tribunal decides whether there has been a breach of the Code and has the ability to award a number of remedies. These are set out in section 54 and include:

• a declaration that the action of the defendant is in breach of the Code
• an order restraining the defendant from continuing or repeating the breach, or from engaging in, or causing or permitting others to engage in, conduct of the same kind as that constituting the breach, or conduct of any similar kind specified in the order
• damages in accordance with section 57
• an order that the defendant perform any acts specified in the order with a view to redressing any loss or damage suffered by the aggrieved person as a result of the breach
• any other relief the Tribunal thinks fit.

The types of damages that may be awarded are specified in section 57 and are paid by the Commissioner to the aggrieved person on whose behalf the proceedings were brought. Damages may be in respect of:

• pecuniary loss suffered as a result of, and expenses reasonably incurred by the aggrieved person for the purpose of, the transaction or activity out of which the breach arose
• loss of any benefit, whether or not of a monetary kind, which the aggrieved person might reasonably have been expected to obtain but for the breach
• humiliation, loss of dignity, and injury to the feelings of the aggrieved person
• any action of the defendant that was in flagrant disregard of the rights of the aggrieved person.

An important limitation in the ability of the Tribunal to award damages is set out in section 52(2). This states:

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

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

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

Punitive damages are defined in section 57(1)(d) as being damages in respect of "any action of the defendant that was in flagrant disregard of the rights of the aggrieved person".

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

In her review of the Act, the Commissioner has recommended that section 52(2) be removed and section 57 amended to ensure the Tribunal has the power to award damages whereby consumers recover total costs. This would only occur in circumstances where there has been a breach of the Code and where ACC payments do not provide full compensation. I agree with this recommendation. The Health and Disability Commissioner Act is consumer legislation with the express purpose of protecting consumer rights. There is justification for adopting a modified approach to the general rules governing the award of damages under this legislation.

The health professional disciplinary bodies

The various health professional disciplinary bodies, such as the Medical and Nursing Councils, assess matters of professional conduct and have the ability to suspend a registered health professional from practice and to award fines payable to the professional body. Unlike the Complaints Review Tribunal, they do not have an ability to put things right for the consumer, other than ensuring that the same thing does not happen again.

As a result of public concern about this disciplinary process being solely under the control of the professional bodies, the Health and Disability Commissioner Act provides for an independent investigation of complaints by the Commissioner. On referral from the Commissioner, the Director of Proceedings can lay charges directly in the professional tribunals. This side-steps the procedure which used to apply before the Health and Disability Commissioner Act came into force, whereby investigations were undertaken by the professional bodies themselves and the investigating arm of professional body, e.g. the Complaints Assessment Committee of the Medical Council, determined whether charges should be laid.

3. Provisions relating to the Director of Proceedings

The statutory provisions governing the powers and functions of the Director are not entirely straightforward. First, they are scattered throughout the Act. While most of the provisions relating to the Director, including those dealing with the Complaints Review Tribunal, are found in Part IV of the Act, the appointment of the Director is dealt with in Part I. Secondly, the provisions themselves are not in logical order. While section 47 describes, in very general terms, the Director's right to participate in disciplinary and other proceedings, it is section 49 which specifies the functions of the Director. Logically, the Director's functions should come first and the description of his or her powers and rights should follow. Again, there is a recommendation in the Act review consultation document for a more logical structure to these provisions.

4. Consumer wishes vs public interest

Before the Director of Proceedings decides to institute proceedings, two things must be considered: the wishes of the complainant and the need to ensure that appropriate disciplinary proceedings are instituted in any case where the public interest so requires (section 49(3)).

This has proved to be a difficult task when disciplinary action is being considered. My experience is that consumers are generally reluctant to appear before disciplinary bodies. They tend to feel responsible for the disciplinary action, as if it were their fault, and that does not sit comfortably with them. They are generally upset by the incident and wish to put it behind them. The thought of having to "relive" the incident in front of a number of other professionals and be subjected to a legal process without any direct benefit is often extremely daunting.

Disciplinary action is focused on the professional

From an individual consumer's perspective, disciplinary action can be quite destructive. While such action is certainly in the interests of consumers as a whole, I have found that individual consumers are often left feeling isolated, disbelieved, traumatised and generally dissatisfied by the process. The difficulty is that disciplinary bodies are provider-focused. Their purpose is to discipline the professional, not compensate the aggrieved person.

The fact that the decision to prosecute is made by the Director in some ways removes the burden from the consumer, but in other ways serves to further isolate the particular individual. The consumer is merely a witness in the prosecution case and is not the client of the Director of Proceedings. While the Director can make arrangements for the consumer to be supported throughout the process, in my view the disciplinary process as a whole is not supportive for the consumer. While I recognise that the disciplinary bodies have made an effort to make the consumer feel comfortable and safe, the very nature of the adversarial process often outweighs that support.

What is the dilemma?

If the Director were to put emphasis on the individual consumer's true wishes, then it is likely that few disciplinary proceedings would go ahead or have the consumer present to give evidence. I take the view that the public interest in a safe, accountable professional body will generally outweigh an individual consumer's wishes not to proceed. Where a consumer is particularly damaged and there is a high public interest, the conflict between the two considerations will be far greater. Thankfully I have not yet faced such a case.

5. The Director's Processes

As the first full time Director of Proceedings, I am attempting to establish protocols in respect of a number of matters, including how information is recorded, what procedures are quasi investigative and what prosecutorial, what factors are considered when determining whether to issue proceedings and whether there is scope for alternative resolution.

For example, in an attempt to resolve the dilemma referred to above, I have sought legal advice from Crown Law on whether it is within my power to establish a scheme similar to the Police Diversion scheme and am awaiting their response to this. If I am able to institute such a scheme, then I will obviously need to liaise closely with the professional bodies to get their agreement and involvement in the project.

Evidence

In addition to considering the consumer's wishes and the public interest, the Director must also take other factors into account when deciding to initiate proceedings. For example, the referred file must contain sufficient evidence on which to proceed. The information necessary to support a breach of the Code may or may not be sufficient to support disciplinary action. Furthermore, it may be necessary to gather evidence in a more formal way than that which was necessary for the Commissioner's processes.

I have developed the practice of contacting witnesses to clarify details and/or to obtain further evidence as needed. As a prosecutor, the Director has a duty to be scrupulously fair and accordingly must also consider issues of credibility in deciding whether to proceed.

Disclosure of information

I have also adopted the practice of recording and transcribing any discussion between myself and the consumer and other witnesses, unless it is of a very brief and administrative nature. The person concerned is advised of this procedure. Similarly, the section 49 hearing with the provider is recorded and transcripts prepared so they can be disclosed if required.

The reason for recording all oral communications is that it results in a more accurate record, is easier to disclose to the provider or his/her representative and reduces the possibility of a provider or witness giving evidence in direct conflict with something previously told to me, with all the difficulties to which that would give rise. In such a case the Director may need to be disqualified and called to give evidence and this is a situation better avoided.

Right to be heard

Section 49(2) gives the person against whom proceedings are contemplated a right to be heard by the Director before any decision is made. As disciplinary action is quasi criminal in nature, I am of the view that I have a duty to advise providers that they are entitled to legal representation, and advise them of that when arranging the section 49 hearing and again at the beginning of the hearing. I often suggest that they contact their insurer, if they have one, and I inform them that their insurer may provide, or pay for, legal advice and representation.

I consider it important to do this because of a general lack of understanding about my role. I have been surprised by providers' ignorance of the role of the Director and what this may mean for them.

6. Conclusion

From my perspective the role of Director of Proceedings is not an easy one. The Act is ambiguous about the functions and rights of the Director, and there is a lack of clarity about the Director's independence from the Commissioner. In these initial years there is a great deal to be done to establish practices and protocols around the role, while at the same time attempting to keep on top of an increasing workload within limited funding.