Call for a right to appeal not unheard by HDC

• Petitioners told MPs too many complaints to the health and disability commissioner are not investigated.
• Mesh-injured patients, in particular, are boycotting the complaints process due to lack of trust.
• Commissioner Morag McDowell did not rule out the idea of a right of appeal against HDC decisions but said it would require full consultation with the sector.

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 isn’t ruling out the possible introduction of a right of appeal against its decisions.

Petitioners calling for the right to appeal told a health select committee last month that the HDC complaints system is unfair.

Petition lead Renate Schütte and fellow patient advocate Charlotte Korte presented to the committee on behalf of those who have experienced surgical mesh treatment injuries. Both women had such injuries and made complaints to the HDC.

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

Also before the committee were University of Auckland law professor Jo Manning, member of patient advocacy group the Cartwright Collective, and Auckland Women’s Health Council member Sue Claridge.

The four women said people are boycotting the complaints process, and the right to appeal is a cornerstone of justice and would introduce greater fairness.

Ms Claridge says the impact of having different commissioners can be seen in the dramatic decrease in the number of complaints investigated in the past 20 years.

Appeal rights would recognise that humans are fallible and would “level the playing field” between different commissioners, she says.

Ms Korte says seeing complaints not being resolved has led mesh-injured people to boycott the HDC due to lack of trust. This was evidenced in a Ministry of Health 2019 restorative justice review, which heard from more than 600 mesh-injured New Zealanders, she says.

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

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

The review showed health professionals are either not raising the alarm about problematic medical practice when it occurs, or are having their concerns dismissed, she says.

Professor Manning says it is “baffling” that a decision from the Motor Vehicle Disputes Tribunal can be appealed, but decisions regarding a death or serious injury can’t.

Ms Claridge points out that “no further action” decisions, being cases that cannot be publicised, affect patients’ and providers’ ability to make informed choices about health practitioners.

Health and disability commissioner Morag McDowell and chief ombudsman Peter Boshier presented their responses two weeks later.

Ms McDowell acknowledged the experiences of those who provided submissions, as well as the issues of access to justice that they raised.

She says she is not opposed to a right to appeal, but believes it’s a complex issue requiring careful consideration.

Ms McDowell notes HDC decisions are subject to a number of reviews, including by the ombudsman, and to judicial review in the High Court.

The HDC has been tasked with reviewing 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.

Ms McDowell 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 the options and ensure the concerns raised by the petition have been addressed.

Mr Boshier says 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. He corrected claims made in the petition suggesting that he had “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 [are] receptive ears.”

Ms McDowell adds the HDC is undergoing improvements to its services after receiving criticism and a list of recommendations from the ombudsman in December last year.

These are medium to long-term changes, but she believes they 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 currently with the investigation team.

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

Ms McDowell says if amendments are made introducing a right-to-appeal process, they 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 especially affecting those communities who experience worse health outcomes, any changes would need to meet the HDC’s obligations under Te Tiriti o Waitangi.