Petition for right to appeal HDC decisions reaches health select committee

“Without a right of appeal, consumers are disadvantaged – a fair and just resolution is simply unachievable”

Patient advocates are calling for a right to appeal decisions made by the Office of the Health and Disability Commissioner, saying the current system is unfair and people are boycotting it as a result.

“Our case studies clearly demonstrate the gross unfairness of the HDC process, a process that is inequitable and a clear denial of natural justice,” Renate Schütte, a woman harmed by surgical mesh, told the health select committee on 27 October.

The committee was hearing submissions on Ms Schütte’s petition, “A right to appeal decisions made by the Health and Disability Commissioner”, which was presented to Parliament on 22 June last year. The petition gained 447 signatures.

Ms Schütte and Charlotte Korte presented to the committee as advocates for those who have experienced surgical mesh treatment injuries. Both women had such injuries and made complaints to the HDC.

They were joined by University of Auckland law professor Jo Manning, a member of patient advocacy group the Cartwright Collective, and Auckland Women’s Health Council member Sue Claridge.

All four women told the committee a right to appeal is a cornerstone of justice, and would introduce greater fairness in the complaints system.

Ms Claridge says the HDC’s decision is arguably more prone to error due to being reached after a paper assessment, rather than a hearing with oral evidence.

She adds that the impact of having different commissioners can be seen very clearly, looking at the number of complaints investigated versus those closed with a “no further action” decision.

“Over the last 20 years, there has been a dramatic decrease in the number of complaints investigated… Without this drop in investigations, and without a right of appeal, consumers are disadvantaged – a fair and just resolution is simply unachievable.”

Appeal rights would recognise that all humans are fallible, give the opportunity to review decisions with or without new evidence and would “level the playing field” between different commissioners, says Ms Claridge.

The lack of a resolution through the complaints process has seen mesh-injured people boycott the HDC because they have lost trust in the process, says Ms Korte.

This is evidenced in the Ministry of Health Restorative Justice Report, published in 2019, which heard from over 600 mesh-injured New Zealanders.

Data also shows that in the year to June 2021, 1930 mesh-injury claims were made to ACC, but the HDC received only 72 complaints about surgeries between 2012 and 2021.

Two were closed with a referral to the Medical Council, says Ms Korte.

“Not only are the mesh-injured not submitting complaints – [not getting] access to the very agency there to protect them – they are not laying complaints to the hospital they received treatment from.”

Further statements from the restorative justice report illustrate the majority of health professionals are not raising the alarm about serious concerns of medical practice when they occur, or if they have, these concerns have been dismissed, she adds.

Speaking to New Zealand Doctor Rata Aotearoa following the committee, Ms Korte called the situation a “perfect storm”.

“Patients are not complaining, health professionals are not raising the alarm, and the very people you are relying on to protect you are not investigating properly either.”

Professor Manning told New Zealand Doctor after making submissions she finds the whole situation “baffling”.

“You can get a decision from the Motor Vehicle Disputes Tribunal about a car and you can appeal that, but if there’s a death or a serious injury as a result of your healthcare, and you make a complaint… if you as the consumer or the provider decide you are not happy with the decision, that’s the end of the matter.”

No further action decisions, which means complaints made about individual professionals aren’t publicised, also affect both the patient’s and provider’s ability to make informed choices, adds Ms Claridge.

She says if a patient is referred for treatment by their GP to another practitioner who is a “frequent flyer” in the complaints system, but this information is not public, there’s no way for either the GP or the patient to know, and could lead to more patients experiencing harm.

Ms Schütte’s own complaint to the HDC resulted in a “no further action” decision after she says she spent a lot of time presenting and justifying her case, and sought independent advice which demonstrated there was a breach of the Code of Health and Disability Services Consumers' Rights.

The health select committee will hear from health and disability commissioner Morag McDowell and the Ministry of Health on 10 November.

In a statement to New Zealand Doctor Ms McDowell says she acknowledges the experience of Ms Schütte and other complainants. She says the proposal for a right of appeal is a complex matter requiring careful consideration.

“I am alert to and empathise with the concerns they've raised, and HDC is working to implement a range of initiatives to improve people's experiences with our processes.”