Act and Code review feedback session
11/01/24
Participants: Sue Claridge (Auckland Women’s Health Council); Professor Joanna Manning
(Auckland University Law School, Cartwright Collective); Charlotte Korte (Advocate for
surgical mesh; Health Consumer Advocacy Alliance); Renate Schütte (consumer advocate).
HDC attendees: Catherine McCullough; Kylie Te Arihi; Jane Carpenter
Kylie opened with karakia followed by a round of whakawhanaungatanga. Catherine invited
everyone to focus on the matters that were most important to them.
If there was one key message that you want the review team to take away, what would it
be?
- Transparency and equity. Eg Provisional Opinion – consumer doesn’t get all the
information and that is at the end of the process. Putting the consumer at the
central focus.
- Lack of balance in preliminary assessment process. Feels very much that the
complainant submits their complaint and then is kept at arms-length – shut out of
process, loses power. Only receives a redacted version of experts report, whereas
provider has full version. After months and months the PO is dropped on the
consumer and often no further action. Feels like a set up – that working towards a
NFA all along and gathering information to support that. Have seen clinical
assessments watered down from moderate to mild departures in order to justify
NFA decision – then consumer is given 2 weeks to talk Commissioner out of decision,
which is an uphill battle. Best way to do that is to obtain own report, but
complainants are hindered by money, contacts, closing ranks. On back foot. If
receive NFA, cant go anywhere. Feels wrong, and creates grief.
- Have heard process referred to as making the consumer swallow a dead rat.
- About 900 complaints a year receive a NFA – in around 600 of those there has been
a bad outcome and more than minor experience
and/or the Privacy Act 2020
- Significant imbalance between complainants and providers. Even where a
complainant is a Dr have found the whole process a complete nightmare, hugely
disappointed. If a highly educated, articulate person finds so nightmarish, how would
someone less articulate, less able to fight find it.
Information released under the Official Information Act 1982
- Providers have resources to respond to complaints that consumers just don’t have.
In the end the PO is given to consumers and have 2 weeks to respond. How do
people afford / find anyone in that timeframe. Natural justice is only given to the
provider because only they get all the information.
o
Question: Since the petition has the HDC considered the information that
can be provided in a PO to consumers? Has anything changed?
o
Question: Since the petition, the threshold for investigation has supposedly
gone down, what is going to investigation that wasn’t before?
- Definition of serious harm – can be quite different between clinicians, HDC, and
consumers
- Opportunity to be heard. Feel like don’t have a voice. If could actually oral y speak
and be heard and feel that being heard and listened to would go a long way to
rebuilding and building trust
- Research supports that where people feel respected, feel heard - much more willing
to expect adverse outcomes
- Consumer voice needs to be carried right through – not just early stages.
Feedback on process improvement proposals
- Support including mana-enhancing. To me includes consumer empowerment.
Respecting and validating the consumer voice
- Eg when sending a PO or other communication – a phone call first – or an email
saying that want to have a chat so news can be delivered. Compare to mammogram
news – given option to a support person
- Not just respectful processes, but also on weight give to complainants wishes.
Ombudsman said HDC should have a more explicit policy on the factors it takes into
account, he said that HDC should indicate the weight that attach to different factors
in exercising discretion. Factors have been published, but the part to indicate weight
has not.
-
Hui ā-whānau implements the outcomes that you were talking about. Manaakitanga
and level of care and thinking about how to respond respectfully. Try to get in as
early as possible in the process, but available the whole way through.
-
Everyone has mana – up to the individual to maintain their mana as well as respect
other’s mana – still grappling with how to talk about mana in legislation
and/or the Privacy Act 2020
- Care needs to be taken with mana when it means so many different things.
- Hui ā-whānau sounds like the type of process that needs to happen. In that process,
what is the follow-up, and what information is given. Who is responsible?
Information released under the Official Information Act 1982
o
Hui ā-whānau notes are shared with the complainant and the complaints
assessment team, and Māori directorate continue to advocate for whānau
voice. Expert opinion is not shared with consumer, the same as other
complaints
- Process of discovery in a law situation – don’t understand why I can’t know
information about me
o
Can hear that lost autonomy and powerlessness of that process
- Throughout accreditation process for surgical mesh, discovered that many surgeons
don’t have accreditation. Do the opinion provider have the requisite expertise to be
able to provide a sound opinion. Had put a suggestion of a red flag for patterns and
frequent flyer drs. At what point during investigation do you say have to stop.
- Everything is taken from the consumer and no ability to challenge.
- Complainants are HDC’s most precious resource. If complainants don’t have a voice /
or faith in the system, then the whole system falls on its needs. As well as respect,
significant utilitarian.
- Don’t like changing the name of NFA because taking lots of action. Prefer
Ombudsman’s rec of sending straight to investigation rather than 18 month
preliminary assessment. Should be doing a short assessment, and asking the
complainant what process they want. Wishes of complainant important. Once in an
investigation then in a judicial process so
- Can never hope to do the number of investigations to satisfy consumer demand –
will always be
- Don’t like a suggestion that complainants should complain to a provider, but that if a
complaint has been made that the hospital, then fear of retribution – if have to
report in annual report then have visibility. Do like explicit protection against
retribution
Feedback on Right of appeal
-
Keeping an open mind about the options for challenging, and wanting to ensure
equitable
- Want a system and process that doesn’t result in an avalanche of appeals – has a
filter. Would be an issue with number, would need a system to sort valid appeals
- The question of whether there should be a right of appeal or not is not the hard
and/or the Privacy Act 2020
question – health is most important interest. Can appeal for everything else. It’s how
it’s implemented.
- Right of appeal must be independent. Asking HDC to hav an inhouse appeal is akin to
asking turkeys what they think about Christmas
Information released under the Official Information Act 1982
- Strongly advocate for an independent panel. Something along the lines of an ethics
committee. Would get a volume of appeals. Panel members would review, then get
together to discuss and must include at least 50% consumer / lay and include
someone with a legal / ethics background. There would be some where an appeal
was required and others would be dismissed. The process would include discussion
by zoom ir in person and give an opportunity to be heard and more aligned.
- Would be from NFA as well as investigation.
- Would need independent oversight, formally set up, standards.
- In many ways lowering the threshold for the HRRT is the easy option, but whole new
civil proceeding is started and is denovo hearing with oral evidence, cross
examination etc, why would a complainant want to go there at the moment. Process
is an expensive one. Most appeals in other jurisdictions would proceed based on the
Commissioner’s file
- ‘HDC appeal tribunal’ as an intermediary before HRRT
- Eg university appeals panel like an employment processes
- Want to avoid overloading the HRRT when they are struggling to deliver timely
responses
- Two issues with appeal
o – inequality of arms (providers are insured v personal resources). Redress by
underwriting complainants fees out of the disciplinary levy.
o Concern that would appeal every decision. Are about 660 NFA decisions
every year and about 90 providers who receive breach findings.
- Having an appeal is about keeping the first decision-maker honest.
- If there was a perception among complainants that the processes was fairer and
more just then over time the number of appeals would reduce and would have far
fewer complainants feeling like they had been dealt with unjustly.
- Closed file review has been increased, but these are not published, neither are the
NFAs. Transparency is important.
- People need to be heard and feel like justice has been done. Even if doesn’t go way
hoped, if came out feeling heard.
- What motivates people – with dead children, feeling that can either let go, or try and
do something about it, or have to do justice by baby, so can say th
and/or the Privacy Act 2020 at didn’t die in
vain and did best for. Everything we have been through means something and is
validated
-
Information released under the Official Information Act 1982
- What are the barriers, other than financial constraints and IT systems, that HDC
faces to identify systemic issues. If can prevent things happening
o High-turnover of staff, communication and collaboration with other health
entities. Holding other health entities in account
o Have to have data, share it and be comparable.
o
- In policy is an area that really want HDC to look at. Particularly interested in frequent
flyer drs. What is action to identify and then what will do about it
o Gave example
- What are the levers within the Act to increase accountability for system
improvement / change / prevention?
o Eg our equivalent in NSW has the power to interim suspend people from
practive
- Limited oversight of private sector – eg cannot ban mesh or mesh procedures.
- For trivial complaints, probably got it right, some should result in educative letter.
But at the serious end, if taken as serious, it is investigated, then breached, the
HPDT, then revoking licence – something wrong with how long that process takes.
Meanwhile, that practitioner continues to practice. Eg – could it go straight to the
DP? Take out the most complex cases and still have natural justice. And that
- Educational comment – when hear that, then can be a knife in the side
- Panel provides an opportunity to speak to issue and the weight
- The timeliness of a complainant making a complaint varys for a number of reasons –
by the time in a position to make a complaint, so much time had passed that
thought, what’s the point.
- Lack of follow-up- - catherine to check on 3-month close-off period
and/or the Privacy Act 2020
- Essential to have a right of appeal, has potential to drive better decision-making.
Everything is staked against the consumer. No right of appeal, nowhere to go.
Doesn’t feel right.
Information released under the Official Information Act 1982
- Speedy, efficient, early resolution – timely and clear response and thorough alanysis.
Speedy gives impression that want to get off books.
- If going to HRRT would want it to be streamlined so that it starts like it appeal rather
than denovo. Or set up a review panel under the HRRT.
and/or the Privacy Act 2020
Information released under the Official Information Act 1982
