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Justice Tipping's Judgement - the First Major Test of the HDC Act

1. Introduction

On 1 July 1996 the Code of Health and Disability Services Consumers' Rights became one of the primary vehicles for reviewing the quality of service provision in the health and disability sector. It is part of a system of review which includes the Ministry of Health, Regional Health Authorities, the New Zealand Council for Healthcare Standards, disciplinary bodies and self-regulating professional provider groups.

The Code gives rights to all consumers when they are receiving a health or disability service. The duties and obligations in the Code apply to any person or organisation providing or holding itself out as providing health services to the public. This includes all registered health professionals and hospitals, whether public or private, and extends to alternative health providers. The definition of a disability services provider is even wider, as it is not limited to those providing services "to the public".

As Commissioner, I am afforded wide jurisdiction and equally wide powers to ensure compliance with the Code. However, after almost 20 months of the Code's operation, the extent of these powers is only just beginning to be recognised by those in the health and disability sector. The decision of Justice Tipping in Nicholls and Brown v The Health and Disability Commissioner is currently the only judicial interpretation of the Health and Disability Commissioner Act, and it has been of considerable assistance in clarifying the Commissioner's powers.

I would like to focus on the significance of Justice Tipping's judgment, and discuss some key issues which have concerned me during the first 20 months of the Code's operation. In addition to discussing my role and jurisdiction as Commissioner, I will look at the extent of the powers I am given to carry out this role.

2. Role of the Health and Disability Commissioner

Purpose of the Health and Disability Commissioner Act 1994

The Code of Rights is established as a regulation under the Health and Disability Commissioner Act 1994, which defines the boundaries of the Code and the operation of the Commissioner's office. The purpose of the Act is defined 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.

The legislation is a unique attempt to balance two diverse aims - the right of individuals to resolve disputes to their own satisfaction, and the right of the public to safe services and an accountable professional body. The Act not only provides a mechanism for resolving complaints directly with the service provider, but also acts as a gateway to the health professional disciplinary bodies for complaints about registered health professionals. The Act also provides access, via a Commissioner's investigation, to the civil processes of the Complaints Review Tribunal. The need to achieve a correct balance between these two aims will inevitably influence the interpretation and application of the legislation. As Commissioner, I am charged with ensuring that the purpose of the Act is met in its entirety and that this balance of interests is appropriately managed.

Defining the Role and Jurisdiction of the Commissioner

The legal action from which the Nicholls judgment derives resulted from my decision to investigate Christchurch Hospital under section 35 of the Act. The plaintiffs sought judicial review of that decision. Justice Tipping dismissed the plaintiff's application for review on all counts, and in so doing addressed a number of issues under the Act.

Commissioner's Initiative Investigations

First, His Honour confirmed that I may undertake investigations on my own initiative, as well as on the basis of a complaint, in circumstances where there appears to be a breach of the Code. The ability to act in the absence of a specific complaint is an important element in ensuring public safety. In considering whether to conduct such an investigation, my 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.

The Christchurch investigation was commenced on my own initiative and not on the basis of a complaint. However I want to talk briefly about anonymous complaints, a number of which have been received over the last 20 months. While there are difficulties in acting on anonymous complaints, I may sometimes decide to investigate the matters raised on my own initiative, particularly where they involve vulnerable consumers who are unable to complain for themselves. I recognise that not all anonymous complaints are made in good faith, and I do take this into account. Such complaints also make it more difficult to gather the necessary evidence to sustain an opinion that the Code has been breached. Therefore I would encourage all persons wishing to make a complaint to come forward, with the help of support persons or advocates if required, and be named. The Code is designed to empower consumers to complain and to protect them when they do so.

Events Prior to 1 July 1996

The second main issue addressed in the Nicholls judgment is the ability of the Commissioner to look at events prior to 1 July 1996, the date the Code came into effect. Justice Tipping held that although a discrete and self-contained incident which occurred before 1 July 1996 could not breach the Code and therefore could not be investigated, such incidents may be relevant in deciding whether a breach occurred after 1 July 1996. An omission after 1 July 1996 to discontinue or amend a practice in force prior to that date could be held to be a breach of the Code. Accordingly, it may be necessary, and is perfectly permissible, for me to look at a period prior to 1 July 1996 to identify and trace the administration of the practice.

Systems Issues

I am not limited to investigating single or discrete incidents however. Nor am I limited to investigating individual providers. Provided the matter I wish to investigate is fairly capable of being conceptually linked to an apparent breach of the Code, I am also able to investigate systems issues. The actions I am empowered to investigate include, under section 2, "any policy or practice". The definition of "action" also includes a failure to act. Accordingly, when considering whether consumers, either individually or as a group, are receiving services that comply with the Code, I can examine the policies and practices of a provider, including its management policies and practices, in addition to any matter of professional competence or any other public safety issue that may arise.

Justice Tipping also considered how far my powers extend in terms of examining these policy or management areas. He formed the opinion that my power of investigation is not open-ended, in the sense that the subject matter must fit the definition of the word "action". Nonetheless, as long as a provider's conduct can reasonably be described as a policy or practice, and is or appears to be in breach of the Code, my power to investigate it is not circumscribed.

The Impact of the Judgment on Investigations into Systems

Justice Tipping's judgment on this point is a key reference point for future investigations. When considering whether consumers, either individually or as a group, are receiving services that comply with the Code, I am empowered to examine the providers' policies and practices, including those relating to management, in addition to any matter of professional competence or any other public safety issue that may arise. To date I have investigated a number of cases where, although the initial complaint was about an individual provider, it was the system which was ultimately at fault. Prior to the Health and Disability Commissioner Act, it was primarily individuals who were found at fault. This was neither fair nor helpful given the complex nature of the modern health and disability sector.

Conversely, complaints about an organisation, such as a CHE, have also led to a finding of a breach of the Code by individuals. It must not be forgotten that a system is the sum of its component parts. Both individuals and management must work together to ensure that services are of an appropriate standard. The mere fact that a "system" is at fault does not absolve individuals from responsibility, firstly for ensuring that their own services meet the Code, and secondly, for ensuring that any faults in the system are brought to the attention of the appropriate authority so they can be rectified.

To emphasise that responsibility for meeting the Code is shared by individuals and management, section 72 of the Act imposes vicarious liability on employing authorities in certain circumstances. Anything done or omitted by an individual will be treated as done or omitted by that individual's employing authority. The potential for employers to be found in breach of the Code will, I hope, prove a useful incentive to ensure that appropriate systems are in place to ensure compliance.

Obviously, if a consumer suffers any harm, physical or otherwise, as a result of the provider's actions, I may find the provider in breach of the Code. However, it is interesting to note that the Commissioner's ability to find a breach of the Code goes further than that. Actual harm is not a necessary element for such a finding. Right 4(4) clearly states that services must be provided in a manner that minimises potential harm to a consumer and optimises his or her quality of life. Providers should therefore have in place safety management systems through which risks to consumers are identified and managed. It is not necessary to wait until a systems failure results in actual harm to a consumer before I can act. Nor am I limited from taking appropriate action to protect public safety by the fact that no specific complaint has been received.

Reporting

A further matter addressed in the Nicholls case is the Commissioner's ability to report on an investigation. Justice Tipping confirmed that I am empowered in the interests of fairness and public information to report publicly on an investigation, even if it has led to a finding of no breach of the Code . This power is provided for by section 45 of the Act. This, and other powers given to the Commissioner by that section, may not be exercised unless I am of the opinion that any action I have investigated was in breach of the Code. His Honour considered, however, that it did not follow that I might not resort to the exercise of other powers and functions given to me by the Act in situations where I was of the opinion that no breach of the Code had occurred.

Accordingly, if I conclude that there is no breach of the Code, I may proceed to report under section 14(1)(d) of the Act. This section entitles me to make public statements and publish reports in relation to any matter affecting the rights of consumers of health and disability services. Provided the statement or report can reasonably be regarded as affecting those rights, or as promoting an understanding of and compliance with the Code, it does not matter that the statement or report also draws on information which the Commissioner obtained during the course of an investigation which resulted in a finding of no breach.

Information lawfully obtained during an investigation may, subject to any specific provision in the Act to the contrary, be used in carrying out any of the Commissioner's functions, including the promotion of the Code and the education of the public. In my view, being informed about those circumstances where the Code is not breached is often as important to an understanding of the Code as being informed about those circumstances where a breach does occur. Indeed, as Justice Tipping put it, it would be a "a most inconvenient and unjust construction of the Act" to take the view that, following an investigation, I could make no further public reference to the matter unless a breach of the Code was found.

3. Extent of the Commissioner's Powers

Consumers of health and disability services have not been slow to utilise the opportunity afforded them by the Act to make complaints about those services. As the public becomes increasingly aware of the Code, complaints to my office are increasing. So too is the seriousness and complexity of those complaints. Legal challenges to the Commissioner's powers are an inevitable consequence. With these challenges comes a growing understanding of the considerable flexibility which the Act allows to enable me to regulate my procedures as I think fit. I welcome further judicial interpretation of the Act to assist in defining the Commissioner's practices and procedures, and to clarify key aspects of a relatively new piece of legislation.

Access to Information

The Commissioner's powers include a wide ability to access information for the purposes of an investigation. In particular, section 62 enables me to require production of any relevant information or document and includes the ability to summon and examine on oath any person who in my opinion is able to provide information. This is consistent with the inquisitorial, rather than adversarial, nature of the Commissioner's powers.

Section 62 and the Privacy Act 1993

Some providers have attempted to refuse a request for information made under section 62 on the basis that compliance would breach the Privacy Act. Responding to such refusals is time consuming and results in unnecessary delays. Section 7 of the Privacy Act makes it clear that that Act has no application where a provision in another enactment authorises or requires personal information to be made available. Section 62 of the Health and Disability Commissioner Act is such a provision.

I am concerned that providers' worries about the Privacy Act have engendered a habit of secrecy and lack of communication which is contrary to good practice. A recent example was a mental health investigation where five months after commencement the provider commented that a District Inspector was investigating the same matter. Following several phone calls three separate reports relevant to the investigation were brought to light - two completed and one in progress. Such a lack of co-operation is a waste of taxpayers' money and providers' time and in the future I may well make public statements about such matters.

Because of the undesirability of delays, I have recently adopted an active policy of taking proceedings to obtain information if it is not forthcoming after reasonable requests. For example, late last year I initiated High Court proceedings to obtain information from a Crown Health Enterprise, although in that particular case the information was eventually produced without the need for Court intervention. My advice to providers faced with a similar request for information during an investigation is to save both time and legal fees by complying promptly.

Quality Assurance Reviews

I acknowledge that there will be some occasions where the confidentiality of information remains statutorily protected. For example, the Medical Practitioners Act 1995 contains quality assurance provisions which provide for the confidentiality of and legal protection for information which becomes known solely as a result of a Ministerially declared quality assurance activity. Obviously, I do not want to prevent the performance of effective quality assurance initiatives. Indeed, I recognise their benefit and strongly encourage the development of activities which result in an assessment of services for the purpose of improving the practice or competence of providers. I note, however, that only information which becomes known solely as a result of a declared quality assurance activity is protected, assuming that the activity is one covered by the Act. This does not prevent disclosure to the Commissioner of information acquired by participation in or witnessing events subject to an investigation.

Ability to Conduct Investigations in Public or in Private - Implications for the Official Information Act 1982

Requests for information go both ways, and often I am asked by lawyers, medical practitioners or consumers for information which I have gathered in the course of an investigation. While the Health and Disability Commissioner is listed among those organisations to which the Official Information Act applies, section 59(1) of the Health and Disability Commissioner Act allows me to conduct investigations in public or in private. To date, all investigations by my office have been in private, although on occasion I have made the final result of an investigation public. Where an investigation is carried out in private, I consider that section 18 of the Official Information Act applies. That section provides that a request for information may be refused if making available the information requested would be contrary to the provisions of a specified enactment. In my view section 59(1) is such a provision. It would be contrary to, and defeat the purpose of, that section if I were obliged to disclose information gathered as part of an investigation that I had determined, pursuant to that section, to conduct in private. Although as yet untested by the Ombudsman, there are also occasions when I consider it necessary to withhold information to avoid prejudice to the maintenance of the law by my Office . Other exceptions to the general requirement to disclose information have also been relied on to refuse disclosure in particular cases.

Of course refusal to provide information under the Official Information Act still leaves open the issue of whether information should be released for reasons of natural justice. These requirements are largely set out in the Health and Disability Commissioner Act itself, and include the requirement to provide details of the complaint or subject matter of the investigation and a reasonable opportunity to respond. An opportunity is also given to enable parties to respond to adverse comment. Providing that the requirements of fairness are fulfilled, I do not consider it necessary to make the whole investigation file available to those who request it.

4. Responsibility for Setting Standards

So far I have addressed matters arising from interpretation of the Health and Disability Commissioner Act. In conclusion I would like to address another matter which has given me some cause for concern in recent months, namely the absence in many sectors of professional or industry standards against which conduct can be assessed.

Under Right 4(2) of the Code, every consumer has the right to have services provided that comply with legal, professional, ethical, and other relevant standards. However, safety and quality standards are not always clearly defined, either by the professional or industry group or through purchasing contracts. If no standards are set, then I will interpret Right 4(2) with reference to appropriate overseas standards. Alternatively, by forming an opinion as to what is reasonable in the circumstances, I myself effectively set a standard. This, at the very least, has the advantage of prompting debate on the matter within the relevant sector.

In this regard, it is important to remember that the Commissioner is not a Court or Tribunal, and the Commissioner's decisions are not binding. Nevertheless, by investigating, forming an opinion, and making recommendations, the Commissioner has a vital role to play in bringing providers to account and indicating the standards which they must meet. However, the Code is not, and should not be, the primary mechanism for the establishment of standards. Ultimately, responsibility for establishing and maintaining quality standards lies with provider groups themselves. Ideally, professional groups should work with consumers to develop standards which meet the needs and expectations of both parties. To achieve this I promote the Code as a tool to improve service quality - a preventative rather than reactive approach that views the Code in a less punitive light. The health care or disability service provider which incorporates the principles of the Code of Rights into its code of practice, training and induction programmes can only improve its relationship with its clients, increase the effective utilisation of its service and reduce the chance of serious complaints.

5. Conclusion

While the investigation process established by the Health and Disability Commissioner Act is independent and impartial, the overall purpose of the Act is to promote and protect the rights of consumers. This includes the right of all consumers to safe, quality services. The Act is relatively new and untested, and the decision of Justice Tipping in the Nicholls case is of considerable assistance in clarifying the Commissioner's powers in respect of this new law. My aim as Commissioner is to fulfil the Act's purpose as consumer legislation and to be guided by it in the continued exercise of my powers and functions.