HDC says not opposed to right-to-appeal process but it will be complex

“The answer is I have not been happy with what I have seen… But I have to say with the advent of the new commissioner there is a commitment to a principled proper process”

The Office of the Health and Disability Commissioner say it is not opposed to implementing the right for consumers to appeal its decisions, but says it’s a complex process requiring “careful consideration”.

This came during commissioner Morag McDowell’s submission to the health select committee today in response to the petition of Renate Schutte, “A right to appeal decisions made by the Health and Disability Commissioner”.

The petition was presented to Parliament on 22 June last year, with 447 signatures. Two weeks ago, Ms Schutte and three fellow patient advocates, Charlotte Korte, Jo Manning and Sue Claridge, made submissions in favour of the petition to the committee.

They said that the current complaints system is unfair, inequitable and a clear denial of natural justice.

Ms McDowell says she acknowledges the experiences of Ms Schutte and others who provided submissions.

While not opposed to a right to appeal, she believes it’s a complex issue that requires careful consideration.

Ms McDowell also notes that the HDC is already subject to a number of reviews, including by the Ombudsman, and judicial review in the High Court.

Chief Ombudsman Peter Boshier also spoke at the committee and gave his support for Ms McDowell as commissioner. He corrected claims made in the petition which spoke of his “limited powers”.

“I do have wide powers, and the question I ask myself is ‘am I content with what I have seen in terms of health and disability commission practice while I have been chief Ombudsman these last six years?’

“The answer is I have not been happy with what I have seen… But I have to say, with the advent of the new commissioner there is a commitment to a principled proper process.”

Mr Boshier says he delivered three opinions in the past 12 months that were “sharply” critical of the HDC, which spoke of an “unwillingness to investigate” complaints and that it was letting complainants down.

“In the past, my criticism has fallen on unreceptive ears, at the present I believe there is receptive ears.”

READ MORE:

• Petition for right to appeal HDC decisions reaches health select committee

Ms McDowell says the HDC is already undergoing improvements to its services after receiving criticism and a list of recommendations from the Ombudsman last year.

She adds that while these are medium to long-term changes, she believes these may help address the concerns raised by the petition and the submitters.

One of the changes introduced so far has been to “lower the threshold” for investigations, which has seen these cases double in the last year, with more than 400 now with the investigation team.

The HDC is also looking at redesigning its complaints process, focusing on ways to resolve cases early, improving communication with consumers and providers, and better targeting its resources.

If the select committee recommends to the health minister that a right to appeal process be implemented, Ms McDowell says she would support broader sector and stakeholder consultation.

“To ensure all options are considered, the effects are understood and to avoid any unintended consequences for consumers, providers and the sector generally.”

She adds that amendments made regarding a right-to-appeal process will need to be consistent with the HDC’s purpose.

“They should be people centred, noting that there is potential for increased complexity and delay.”

Mindful of the access to justice issues that exist more so for those communities who experience worse health outcomes, any changes made need to meet the HDC’s obligations under Te Tiriti o Waitangi.

Ms McDowell says the HDC is obliged to review the Code of Health and Disability Services Consumers’ Rights and the Health and Disability Commissioner Act, which has been scheduled for late 2022/early 2023, to align with the upcoming health reforms.

She adds there could be scope for a right-to-appeal process to be included in that process.

If so, there would be full sector consultation to consider all of the options and ensure that the concerns raised by the petition have been addressed.

Mr Boshier said that any amendment to the law to implement a right-to-appeal process is a “big call” and would have consequences, including the need for someone to hear the appeal, resourcing and cost.