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The Role of the Health and Disability Commissioner and the Code of Health and Disability Services Consumers' Rights
1. Introduction
New Zealand has a unique place in
the medico-legal world - no other country gives consumer rights the
force of law. The Health and Disability Commissioner Act was
enacted in October 1994 after being in the parliamentary process
for a number of years. The Code of Health and Disability Services
Consumers' Rights came into force on 1 July 1996 and is
incorporated as regulation under the Act. The Act and the Code -
the "tools" of the Health and Disability Commissioner's trade - now
ensure that health and disability consumer protection in New
Zealand no longer depends on the changeable priorities of
individual providers but is subject to a consistent, fair standard
throughout the sector. As Commissioner, I am charged with the task
of promoting and protecting consumer rights, and I am afforded wide
jurisdiction and equally wide powers to fulfil this role.
2. The Commissioner's
Legislation
2.1 The Health and
Disability Commissioner Act 1994
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.[1]
These objectives are achieved
through the implementation of the Code, the establishment of a
complaints process to ensure compliance with the rights contained
within it, and through the ongoing education of consumers and
providers.
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.
2.2 The Code of Health and
Disability Services Consumers' Rights
The establishment of the Code of
Rights was fundamental to achieving the purpose of the Act.
Accordingly, one of my first tasks as Commissioner was to assess
the public's expectation of service providers, and define these in
terms of a set of legally enforceable rights. The Act demanded that
these rights emerge from public consultation. Over a period of nine
months I consulted with, and invited submissions from,
representatives of consumers and providers and specified statutory
agencies, so that I had a wide range of views available to prepare
the proposed draft Code. I later published this (in several
languages), and invited submissions. I determined that the Code
should be simply worded, not densely legalistic, so that it could
be readily understood by both providers and consumers.
The Code now covers rights in
respect of the quality of services throughout the health and
disability sector, but does not cover issues of purchasing or
entitlement to any particular service. I promote the Code as a tool
to improve service quality. 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.
The Act sets out a list of health
care providers to whom the Code applies, which covers "any person
or organisation providing or holding themselves out as providing a
health care service to the public", whether that service is paid
for or not. This includes all registered health professionals, and
extends to alternative health providers.
The Code brings a degree of
accountability to practitioners who are beyond the medical
mainstream - acupuncturists, naturopaths, homeopaths, health shops
and rest homes, etc - professions which have been exposed to little
regulation in the past. It has particular advantage for the elderly
and disability service consumers who previously had little
protection.
The definition of a disability
services provider is even wider as it is not limited to those
providing services to the public. A disability service provider
"means any person who provides, or holds himself or herself or
itself out as providing, disability services". Disability services
include goods, services and facilities provided to people with
disabilities for their care or support or to promote their
independence. For example it extends to special education units,
voluntary agencies and families providing support in the home to
people with disabilities.
The Code confers ten basic rights on
all users of health and disability support services.
They are:
- the right to be treated with respect
- the right to freedom from discrimination, coercion, harassment,
and exploitation
- the right to dignity and independence
- the right to services of an appropriate standard
- the right to effective communication
- the right to be fully informed
- the right to make an informed choice and give informed
consent
- the right to support
- rights in respect of teaching or research
- the right to complain.
In addition to the ten rights, the
Code also contains a clause (Clause 1) which requires providers to
inform consumers of their rights and enable them to exercise those
rights. However, the rights in the Code are not absolute - Clause 3
states that providers are not in breach of the Code if they can
show they have taken 'reasonable actions in the circumstances to
give effect to the rights, and comply with the duties' in the Code
- a matter which must be decided on the particular facts of each
case I consider. It is important to remember that compliance with
the Code is not an "all or nothing" matter. If circumstances are
difficult, the obligation on the provider is still to take all
reasonable steps to comply with the Code as much as possible in
those circumstances. The Code does not override other legislation
and nothing in the Code requires a provider to act in breach of any
duty or obligation imposed by any enactment or prevents a provider
doing an act authorised by any enactment.
3. Key statutory roles established by the
Act
The Act establishes three statutory
positions. The Health and Disability Commissioner is appointed by
the Governor General on the recommendation of the Minister. The
Director of Advocacy and the Director of Proceedings are appointed
by the Commissioner but have independent statutory functions. They
are accountable to the Commissioner for the efficient, effective
and economical management of their activities.
3.1 The Health and
Disability Commissioner
The Commissioner's functions include
the promotion, by education and publicity, of respect for and
observance of consumers' rights; making public statements and
publishing reports in relation to any matter affecting consumers'
rights; investigating either on complaint, or on the Commissioner's
own initiative, any action that is or appears to be in breach of
the Code; making recommendations to the Minister and any other body
regarding the rights of consumers, and mediating resolution of
complaints where appropriate.
3.2 The Director of Advocacy
and the role of advocates
Advocates are fundamental to the
aims of consumer empowerment and low-level resolution envisaged by
the Act. They assist consumers to resolve complaints by agreement
directly with the service provider. Advocates are therefore not
impartial, nor are they mediators. In assisting the consumer,
advocates operate independently from the Commissioner, providers
and purchasers, and are accountable to the Director of Advocacy. As
the person responsible for advocacy services, the Director of
Advocacy is also required by the Act to operate independently from
the Commissioner. Advocates' services are free of charge to the
consumer. While they also have a role in promoting an awareness of
the Code of Rights, their primary focus is on assisting
consumers.
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 either before or at
any time during an investigation. Such referrals have been very
successful to date in achieving a satisfactory outcome for the
parties, but are not always appropriate and do not usually occur
where a matter of wider public interest or professional conduct is
involved.
3.3 Director of
Proceedings
The Director of Proceedings'
function is to decide, on referral from the Commissioner, whether
to institute or participate in proceedings against a person about
whom a complaint has been made. The Director of Proceedings can
assist or represent a complainant, or take action on his or her own
behalf, before the Complaints Review Tribunal and/or before any
health professional body, such as the Medical Practitioners
Disciplinary Tribunal. The establishment of the position of the
Director of Proceedings ensures that all consumers have effective
independent representation, where this is necessary. Again, the
Director of Proceedings is independent from the Commissioner,
because of her role in taking proceedings on behalf of
consumers.
4. The Complaints Process
4.1 Low-level
Resolution
One of the intentions of the Act and
the Code is to promote resolution of complaints at the lowest
appropriate level. Whenever possible, therefore, I encourage
consumers to take their concerns about a health or disability
service directly to the provider involved. This enables the parties
to understand the issues which led to the complaint and assists in
ensuring that these are not repeated. Providers can learn from
consumers' comments, complaints and suggestions, and use them to
improve the quality of service and care they offer. It is important
that consumers know that they can have the assistance of a support
person of their choice or can seek advocacy assistance during this
process.
Right 10 of the Code enables
consumers to complain about the service they receive and sets out
the basic requirements of a complaints process. Every provider is
obliged to facilitate the fair, simple, speedy and efficient
resolution of complaints, while at the same time complying with all
other relevant rights in the Code. In particular, the complaints
process must use procedures that keep consumers informed and in no
way must a complaint jeopardise the provision of service. All
providers except those employed by another provider, are obliged to
have in place a complaints system that complies with the Code. For
a health professional working in a hospital therefore, there are
two responsibilities - to be willing to listen to a direct
complaint, and to know the hospital's procedure and be able to
direct a complainant to the right person.
Complaints can also be made to any
person authorised to receive complaints about the provider
concerned, or to any other appropriate person, including an
advocate or the Commissioner.
4.2 Complaints to the
Commissioner
Anyone can complain to the
Commissioner alleging that an action is or appears to be in breach
of the Code. This includes third parties, such as relatives or
caregivers of a consumer who are concerned about the consumer's
care, or concerned staff members in a provider organisation.
In addition, all complaints made to
the 11 professional registration bodies must now be referred to the
Commissioner. This includes all complaints about doctors, nurses,
dentists, optometrists, 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.)
4.3 Options on Receipt of a
Complaint
I have various options on receiving
a complaint. I 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. I may refer the matter to advocacy in an
endeavour to have the parties resolve the matter themselves, or I
may decide to investigate to determine whether there has been a
breach of the Code.
4.4 Commissioner's
Initiative Investigations
The Act also enables me to 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.
4.5 The Investigation
Process
In exercising the investigation
functions conferred by the Act, I must act independently and
impartially. This is the reason for the Commissioner's independence
from the Director of Advocacy (whose role is to contract advocates
to empower consumers) and the Director of Proceedings (who takes
proceedings on behalf of complainants).
The rules of natural justice apply
to the investigation and are largely set out in the Act. For
instance, before commencing an investigation I will inform the
parties of my intention to do so and will advise the provider of
the details of the complaint. I 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 I make
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. However, subject to the
requirements of the Act, I am able to regulate my procedures as I
think fit. My investigation may be conducted in public or in
private. To date, all investigations have been in private,
although, where circumstances warrant, I have on occasion made the
results of an investigation public.
In the course of an investigation I
may consider a wide range of evidence, including interviews with
witnesses and parties, correspondence, clinical notes, policy and
practice manuals, and any other relevant material, including
physical material such as labelled medication containers. The Act
gives me wide powers to collect whatever information I consider
relevant to the investigation. Where appropriate, I 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 I am investigating a complaint about
a rural GP, I may seek a peer review from another rural GP.
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. I have a
discretion to refer matters to another person or authority where I
consider it in the public interest to do so. Indeed, I 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".
4.6 Mediation
In keeping with the Act's aim of low
level resolution, I 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
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.
4.7 Ability to Investigate
Systems Issues
I am not limited to investigating
single or discrete incidents, nor am I limited to investigating
individual providers. I am also able to investigate systems issues.
Under section 2 of the Act, the actions I am empowered to
investigate include, "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. Prior
to the Health and Disability Commissioner Act, it was usually only
individuals who were found at fault. This was neither fair nor
helpful given the complex nature of the modern health and
disability sector.
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. Conversely, complaints about an organisation, such as a
hospital, 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.
In addition to any direct
responsibility a provider may have for systems, the Act also
imposes vicarious liability on employing authorities in certain
circumstances for the actions of its employees or agents. This
emphasises that responsibility for meeting the Code is shared by
individuals and management. 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.
5. Options after Investigation
After an investigation, I form an
opinion on whether the provider has breached the Code and notify
the parties of my findings. While my opinion signifies the end of
the investigation, where my opinion is that there has been a
breach, the Act provides me with a range of options for using the
opinion to promote change, both in respect of the conduct of
individual providers and in the sector generally.
5.1 Reports and
Recommendations
These options include the making of
reports and recommendations to the provider, a purchaser, a health
professional body, the Minister of Health, or any other person I
think 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, I am able to follow them
up and monitor their implementation.
5.2 Proceedings
In addition, I may refer the matter
to the Director of Proceedings. On referral to the Director, the
principal avenues of redress are through 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 must also take the wider public interest into
account and this may ultimately determine the appropriate course of
action.
To date, I have referred 28 cases to
the Director of Proceedings for further consideration. In 15 cases,
charges have been laid with a professional disciplinary body, and
ten cases heard. Two cases have been heard by the Complaints Review
Tribunal in respect of these referrals. 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.
5.3 The Complaints Review
Tribunal
The Complaints Review Tribunal deals
with unresolved matters from the Human Rights Commission, the
Privacy Commissioner and the Health and Disability Commissioner.
Rather than involving the discipline of a professional by his or
her peers, the Tribunal's focus is on putting things right between
the parties. 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 of 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. Conclusion
The Code of Rights is a piece of
consumer legislation. While my investigation process is independent
and impartial, the overall purpose of the Act under which I
function is the promotion and protection of the rights of
consumers. This includes the right of all consumers to safe,
quality services. My aim as Commissioner is to fulfil the Act's
purpose, and to be guided by it in the continued exercise of my
powers and functions.
[1] see also Nicholls v
Health and Disability Commissioner [1997] NZAR 351,355
Robyn Stent
Health and Disability
Commissioner
3 April 1999