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Getting to the Facts - The Health and Disability Commissioner's Investigation Process

The Health and Disability Commissioner's Investigation Process

1. Introduction

The second part of the objective of the Health and Disability Commissioner Act is to "facilitate the fair, simple, speedy and efficient resolution of complaints." Complaints received by the Commissioner alleging a breach of the Code of Rights are increasing in complexity. Today, I would like to discuss the process which is set in motion when the Commissioner receives a complaint, how the Commissioner "gets to the facts" underlying the complaint, and how those facts are collated in the Commissioner's final opinion. Annie Fraser will explain the options available to the Commissioner in situations where the Code has been breached and, in particular, will discuss the interface between the Commissioner and the various health professional bodies.

2. Complaints

Who can make complaints, and how

Anyone can make a complaint, orally or in writing, alleging that any action of a health care or disability services provider is, or appears to be, in breach of the Code. This includes not only the consumer, but also their families and other support people, and other third parties such as concerned staff members in a provider organisation. Indeed, third party complaints are essential to the Health and Disability Commissioner Act's purpose of promoting and protecting consumers' rights. Many consumers lack the ability to complain on their own behalf. In the case of rest homes, for example, complaints have been made by both residents' families and by concerned co-workers of staff alleged to have acted in a manner contrary to the Code. In fact, complaints made by someone other than a resident are the most common form of complaint in this area and no doubt will continue to be so, given the particular vulnerability of older people, many of whom are unable to complain for themselves because they are afraid, are unaware of their right to complain, or lack the ability to do so.

Commissioner's Initiative Investigations

The Commissioner does not have to wait until a specific complaint is received or actual harm is caused to a consumer, before she can take action. In addition to acting on the basis of a complaint, the Health and Disability Commissioner Act enables the Commissioner to undertake investigations on her own initiative in circumstances where there appears to be a breach of the Code. This is an important means by which the Commissioner fulfils her role of consumer "watchdog" and is able to ensure public safety. In considering whether to conduct an investigation on her own initiative, the Commissioner's focus will be on the need to uphold the interests of the wider public by ensuring that providers deliver the quality of services to which consumers have a right.

Advocacy and Mediation

The Commissioner has various options on receiving a complaint. She may decide to take no action, for example where the matter is frivolous or vexatious, or where a complaint is made by someone other than the consumer and the consumer does not wish the matter to proceed; she may investigate the complaint, or, she may refer the matter to advocacy.

Before discussing the Commissioner's processes in any more detail, I would like to comment briefly on the role of advocates, as they are fundamental to the aims of consumer empowerment and low-level resolution envisaged by the Act. The role of advocates is to assist consumers to resolve the matter by agreement between the parties themselves. Advocates are therefore not impartial, nor are they mediators. In assisting the consumer in this way, advocates operate independently from the Commissioner, providers and purchasers, and are accountable to the Director of Advocacy, an independent statutory officer appointed under the Act.

An advocate may at any time report to the Commissioner on any matter affecting consumers' rights which he or she considers should be brought to the Commissioner's attention. Complaints which remain unresolved following advocacy assistance must also be referred to the Commissioner. Conversely, the Commissioner can refer a matter to advocacy at any time during an investigation. While this may not be appropriate and would not usually occur where a matter of wider public interest or professional conduct is involved, such referrals have been very successful to date in achieving a satisfactory outcome for the parties.

Another option in keeping with the aim of low level resolution is mediation. The Commissioner may call a mediation conference at any stage during an investigation. This is an option which has so far been successful on a number of occasions and it is likely to be used increasingly in the future. It is important to note, however, that although mediation may successfully resolve matters between the parties, and therefore prevent any further action being taken in respect of the matter before the Complaints Review Tribunal, an agreement at mediation does not necessarily prevent further action being taken before the appropriate health professional body, for example, where matters of public safety are involved. The public interest in the protection of consumers as a whole may necessitate such action.

3. The Commissioner's Investigation

The Investigation Process

The remaining option on receipt of a complaint is of course for the Commissioner to commence an investigation to determine whether there has been a breach of the Code. The Commissioner's investigation is an impartial and independent process, to which the rules of natural justice apply. For instance, before commencing an investigation the Commissioner will inform the parties of her intention to do so and will advise the provider of the details of the complaint. The Commissioner must also inform the provider of their right to submit, within a reasonable time, a written response to the complaint or matter under investigation. Also, before the Commissioner makes any adverse comment about any person in a report or recommendation, the person concerned is given an opportunity to make a written statement in answer to the adverse comment. The Commissioner's investigation may be conducted in public or in private. To date, all investigations have been in private, although, where circumstances warrant, the Commissioner has on occasion made the results of an investigation public.

Investigations often involve liaison with the Ministry of Health Licensing Section, the professional bodies, the Coroner, and other bodies with an interest in the subject matter of the complaint, for example the Police. The Commissioner has a discretion to refer matters to another person or authority where she considers it in the public interest to do so. Indeed, she must refer matters to the appropriate person or authority, such as the Police, when an investigation has revealed a "significant breach of duty or misconduct".

Appended to this paper is a flow chart of the Commissioner's investigation process which you may wish to refer to later. This diagram is an outline of the process only but from it you can see that the process laid down by the Act is a complex one. However, subject to the Act, the Commissioner is able to regulate her procedure as she thinks fit.

Statistics

You may be interested in some statistics which illustrate the volume of complaints dealt with by the Commissioner. During the 1996-97 financial year the Commissioner received 1,000 complaints. A single complaint may involve multiple consumers or providers and, in fact, complaints during this period represented investigations in respect of 1,451 providers. As at February this year, there were approximately 630 open complaint files in the office, a figure which represents approximately 1,880 separate investigations into providers of health or disability services. (This figure includes investigations of employers, who may potentially be found in breach of the Code for the actions of an employee.) These figures can be expected to increase as awareness of the Code grows.

4. The Commissioner's Opinion

Collecting the facts

The purpose of the Commissioner's investigation is to establish all the facts on which to form an opinion as to whether the Code has been breached. The Commissioner's investigation staff conduct investigations on her behalf and are located in both Wellington and Auckland. There is one Enquiry officer, based in Auckland, who is the primary point of telephone contact for all enquirers. Her task is to acknowledge complaints and ensure that the complaint enters the "system". After the complaint is acknowledged, a senior investigator prioritises the complaint in terms of urgency and complexity. Where complaints are outside jurisdiction or there is likely to be no further action, the file is quickly referred to the Commissioner.

In all other cases where investigations are to take place, the complaint is assigned to an Investigation Officer. There are ten Investigation Officers, 7 in Auckland and 3 in Wellington, with two further appointments pending. Investigation officers must identify the "acts to be proved"- usually, what happened, where, who was involved, and how and why the event complained of occurred. Their task is to carry out the investigation on behalf of the Commissioner and present to her all the evidence upon which she will base her opinion as to whether there is a breach of the Code.

It is expected that a complaint would be acknowledged within one week, that it progress to the decision to investigate or conclude without further action within a further two weeks, and that the investigation progress from that time. The length of any investigation depends on many factors, such as the need to consult with other agencies, the time taken for a provider to respond and whether peer review is required. A referral to advocacy usually results in a short process - usually between six to eight weeks. However it can take well over a year to complete a more complex and difficult investigation where, for instance, the Court or Coroner's involvement extends time frames. While it is difficult to provide you with a time frame in which a "typical" investigation might be completed, statistics from the Annual Report for the year ended 30 June 1997 indicate that just over 75 percent of investigations were completed within six months, while just three percent took over a year to conclude.

In the course of an investigation, the Commissioner may consider oral evidence consisting of interviews with witnesses and parties; documentary evidence, such as correspondence, clinical notes, policy and practice manuals; and any other relevant evidence, such as labelled medication containers, for example. The Act gives the Commissioner wide powers to collect whatever information she considers relevant to the investigation. Where appropriate, the Commissioner may arrange for a peer review to be undertaken in order to obtain information from a provider who has knowledge of and experience in the matters being investigated. For example, if the Commissioner is investigating a complaint about a rural GP, she may seek a peer review from another rural GP. The Commissioner will discuss her investigative powers in more detail later this morning.

The Commissioner's opinion

After an investigation, the Commissioner forms an opinion on whether the provider has breached the Code, and notifies the parties of her findings. While the Commissioner's opinion signifies the end of the investigation, the Act provides the Commissioner with a range of options for using her opinion to promote change, both in respect of the conduct of individual providers and in the sector generally. Annie Fraser will now discuss these options in more detail

5. Commissioner's Options after Investigation

Reports and recommendations

The Commissioner's options on finding a breach of the Code include the making of reports and recommendations to the provider, a purchaser, a health professional body, the Minister of Health, or any other person the Commissioner thinks fit. To date reports have been made to Police, ACC, the professional colleges, the Health Funding Authority, quality organisations, the Ministry of Health and Crown Health Enterprises. Recommendations to providers will vary from case to case, but so far have included such diverse matters as making a written apology to the consumer; undertaking staff training; implementing and reviewing systems to prevent further breaches; reimbursing consumers' costs; and reading the Commissioner's educational material. Where recommendations are made, the Commissioner is able to follow them up and monitor their implementation. The Commissioner can also make a complaint about a registered health professional to the relevant health professional body, and in any case where a breach of the Code is found by a registered health professional, the Commissioner will notify the appropriate professional body of any further action that is to be taken.

Referral to Director of Proceedings

In addition, the Commissioner may refer the matter to the Director of Proceedings, who is an independent statutory officer appointed under the Act. The functions and powers of the Director of Proceedings include wide powers to assist or represent a complainant, or to take action on his or her own behalf, in disciplinary or other proceedings. On referral to the Director, the principal avenues of redress for a matter the Commissioner considers to breach the Code are the Complaints Review Tribunal and the health professional disciplinary bodies. The Director may decide to take action in both these venues.

In making the decision about what action to take, the Director must take into account the wishes of the complainant (or, if there is no complainant, of the aggrieved consumer) but is not bound by those wishes. The Director will also take the wider public interest into account and this may ultimately determine the appropriate course of action. If charges are laid by the Director in the health professional disciplinary bodies, the matter is dealt with, and any final orders are made, under the legislation regulating the particular professional group. To date, the Commissioner has referred 13 cases to the Director of Proceedings for further consideration. In 12 cases, charges have been laid with a professional disciplinary body. No cases have yet been heard by the Complaints Review Tribunal in respect of these referrals.

The Complaints Review Tribunal

For those who are unfamiliar with the Complaints Review Tribunal, this is a body which was established to deal with unresolved matters from the Human Rights Commission, the Privacy Commissioner and the Health and Disability Commissioner. The Tribunal has the power to award a wide range of remedies, including a declaration that the action of the defendant breached the Code; a restraining order, damages up to $200,000, an order for redress of loss, and such other relief as the Tribunal thinks fit.

Damages may be awarded to the aggrieved person in respect of pecuniary loss and expenses reasonably incurred; loss of any benefit reasonably expected but for the breach; humiliation, loss of dignity, and injury to feelings; or any action of the defendant that was in flagrant disregard of the consumer's rights. However, there is one important limitation on the award of damages. Where a person has suffered personal injury covered by the Accident Rehabilitation and Compensation Insurance Act 1992, no damages other than punitive damages, arising directly or indirectly out of that personal injury, may be sought or awarded. Furthermore, where a matter involving a registered health professional has already been the subject of disciplinary proceedings, the Tribunal must have regard to the findings of that disciplinary body and to any penalty imposed in those proceedings.

6. Commissioner's Relationship with Health Professional Bodies

Having discussed in general terms the options open to the Commissioner when the Code has been breached, I would like to take a step back and talk in more detail about the relationship of the Health and Disability Commissioner Act with the disciplinary processes of the various professional bodies, such as the Medical and Nursing Councils. This is a matter which sometimes gives rise to confusion. The Commissioner and these bodies are often lumped together as the "discipline people", whereas in fact their functions and processes are quite distinct. Although the Health and Disability Commissioner Act applies to all health and disability service providers, and not just registered health professionals, I would like to briefly discuss the interface between the Commissioner's office and the professional bodies in order to give a clearer picture of the aims of the Act and the role of the Commissioner.

Independent Investigation

All complaints made to the 11 professional registration bodies must now be referred to the Commissioner. This includes all complaints about doctors, nurses, dentists, pharmacists etc. Once referred to the Commissioner, no disciplinary action can be taken by the professional body until the Commissioner, or the Director of Proceedings, has dealt with the matter and decided to take no further action. Only at this point can the professional body take up the matter itself. (It is only disciplinary action which is suspended. The professional bodies are not suspended from considering a member's fitness to practice for reasons of health or disability, nor is the Medical Council suspended from considering a practitioner's competence to practise under the relevant provisions of the Medical Practitioners Act.)

What the suspension provision means is that the Commissioner now has the task of undertaking independent investigations of registered health professionals as well as other health and disability service providers. Amongst other things, the Health and Disability Commissioner Act was intended as a means of dealing with some of the criticism previously levelled at the professions, arising from their argued inability to investigate their own members impartially. If the Commissioner or Director of Proceedings does decide not to take the matter further, then the professional board has the option of appointing a Complaints Assessment Committee, or similar body, to investigate the complaint, and the Complaints Assessment Committee may itself decide to lay disciplinary charges. However, any disciplinary hearing conducted under the professional legislation has a quite different purpose and focus from the earlier investigation and opinion by the Commissioner.

Distinct purpose and functions

The Commissioner operates under a piece of consumer legislation, and investigates to find out if the Code of Rights has been breached. Therefore, while the investigation process itself is an impartial one, the Commissioner's ultimate focus is on the consumer. A professional disciplinary hearing, on the other hand, focuses on professional conduct and whether that conduct warrants sanction by the professional group. The two processes are quite separate.

The Health and Disability Commissioner Act sets out procedures to be followed in respect of the Commissioner's jurisdiction, including procedural safeguards for those being investigated, and the various pieces of professional regulatory legislation, such as the Medical Practitioners Act and the Nurses Act, do the same in respect of their jurisdiction. Likewise, the Commissioner is given a variety of powers which she is able to exercise in fulfilling her functions, as are the professional bodies. In exercising these powers they act independently.

Commissioner acts independently

One of the Commissioner's powers which has given rise to considerable debate is the Commissioner's ability to comment publicly on any matter affecting the rights of health and disability service consumers, including comments which promote an understanding of and compliance with the Code. This includes the ability to comment publicly on a particular investigation, which for reasons of public interest the Commissioner may decide is warranted.

It has been argued that comments of this sort are unfair, because the provider in question has not yet had an opportunity to be judged by his or her peers, in the form of the relevant health professional body. However, as already discussed, it is important to remember that the role of the Commissioner is different from that of the professional disciplinary boards, and that the functions and processes of the two are distinct. The Code is a piece of consumer legislation which itself sets out standards to be met, regardless of any potential finding of professional misconduct. It would be odd indeed if the Commissioner was able to comment publicly about unregistered providers, but was unable to do so in respect of those subject to professional registration. The purpose of registration after all is to protect consumers, not providers.

It is clear that Parliament intended the Commissioner to act independently of the health professional bodies when it passed the Health and Disability Commissioner Act. This independence was recently reaffirmed by the Minister of Health in the following statement:

"The Health and Disability Commissioner was set up by Parliament as an independent officer precisely for the reason that we needed a complaints body free of political influence and strong enough not to be stood over by the various health professions. The trade-off for Parliament is that it has to accept that as a price for that independence, the Commissioner and the officers of the Commissioner will make their own decisions according to their own discretion."

Peter Williamson, Investigations Manager
Annie Fraser, Legal Manager

Presentation to the MARIE E BURGESS SEMINAR
"Getting it Right - Managing Risk for Health Professionals"

29 April 1998