HDC review to consider right of appeal

A Wellington barrister who specialises in medicolegal cases says creating an appeal process for Health and Disability Commissioner decisions would add unnecessary costs and delays to the resolution of cases.

Gaeline Phipps says addressing the lack of timeliness in the existing complaints process is paramount.

The idea of an appeals process is one of the issues the HDC is seeking feedback on as part of its review of the code and the Health and Disability Commissioner Act. Consultation began on 30 April and ends on 31 July.

The biggest issue with the HDC cases is the lack of timeliness in resolving them, Ms Phipps says. And adding appeals to an already protracted process could be problematic.

It sometimes takes years from an initial complaint being lodged until the HDC releases a decision, she says.

“And an appeals process would just add another layer of delay and more costs to the health sector. And we need to recognise we are talking about this in an environment where resources in the health system are incredibly stretched.”

Ms Phipps says not everyone in her profession will be opposed to the idea.

“A lot of lawyers will be rubbing their hands with glee.”

But Ms Phipps says an HDC appeal process could also lead to increased indemnity costs for GPs and healthcare professionals.

In an emailed response to questions from New Zealand Doctor Rata Aotearoa, Medical Protection Society team leader for New Zealand and Australia, Zarko Kamenica, says he couldn’t, at this stage, comment on the feasibility of an HDC appeal process.

But Dr Kamenica says MPS is putting together a team, including medicolegal consultants and lawyers, to review the code and the act and then provide detailed feedback on the issues the HDC has identified.

As part of the review of the code and the Health and Disability Commissioner Act, the HDC is seeking feedback on five issues:

• Supporting better and equitable complaint resolution.
• Making the act and code more effective for, and responsive to, the needs of Māori.
• Making the act and code work better for tāngata whaikaha (disabled people).
• Considering options for a right of appeal of HDC decisions.
• Minor and technical improvements.

In a statement announcing the consultation process health and disability commissioner Morag McDowell says it is important people provide feedback as part of the review process.

“Our public consultation is an opportunity for everyone using health and disability services, to influence the way the act and code protect and promote their rights,” Ms McDowell says.

“Equally, it is an opportunity for providers of services to shape their obligations and the way complaints are resolved.”

Ms McDowell says HDC wants to ensure the act and code work equitably for all New Zealanders.

"There have also been shifts in our awareness of tāngata whaikaha rights and how we understand mental health and addiction. This means we must strengthen accessibility to the code and complaint processes and set expectations for people to have the support they need to make informed choices and give informed consent to treatment...When the act and code work for everyone they contribute to improved health and disability services, better responses when things go wrong and better health and wellbeing outcomes for all.”