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Health and Disability Commissioner Can we trust in HDC independence?

#1 User is offline   Marc 

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Posted 04 May 2013 - 02:21 AM

This is a "should read" topic for all concerned with appropriate health care delivery, with fair, properly conducted assessments, with ACC or WINZ decisions based on such "assessments", done either by ACC assessors or by "designated doctors" that WINZ commonly use (since 2008 trained and mentored by their Principal Health Advisor Dr David Bratt):

Yes, feel "welcome" to our supposed to be truly independent, fair and caring HEALTH AND DISABILITY COMMISSIONER and his staff at their office.

As of recent, some actually quite bizarre, hard to understand decisions have been made upon complaints to the Office of the Health and Disability Commissioner. A recent one was made by the Deputy Health and Disability Commissioner Theodora ("Theo") Baker.

Having seen one such particular decision, I looked up her background and profile on 'LinkedIn', and by doing an on-line search, I found some perhaps revealing info re her last job at Capsticks LLP, which is a kind of large, virtually a corporate style law firm in the UK, which does do a lot of work for NHS, private health care providers, trusts, and organisations that work with health care providers there.

See these links for extremely interesting and revealing information:

"Theo" Baker' s personal Linked In profile lists her background of having worked for the Health and Disability Commissioner Office before as Director of Proceedings from 2004 to 2009. Then she appears to have left that office for an overseas experience stint at Capsticks Solicitors LLP in the UK for just over a year after that, presumably to get more legal expertise in the health sector there - see this:

http://nz.linkedin.c...aker/61/301/b64

See Capsticks LLP :

http://www.capsticks...iness-areas.php

http://www.capsticks...-litigation.php
(see comment re good record for defending clinical negligence cases!!!)

http://www.capsticks.../regulatory.php

http://www.capsticks.com/careers.php

That corporate law firm has even entered the social housing business now:

http://www.capsticks...ial-housing.php


AMENDMENT / INSERTION - 22 Feb. 2014:

As some of the above links no longer seem to work, try to find the information on the Capsticks LLP website via this link:
http://www.capsticks.com/


"Theo" Baker suddenly returned to New Zealand and did in 2011 accept an appointment by the new Minister of Health, Tony Ryall, to take up a new job at the Office of the Health and Disability Commissioner as Deputy Health and Disability Commissioner. She is according to on-line info and their staff chart responsible for disputes resolution! Anecdotal information about that disputes resolution is, that resolution appears to be more about talking over matters than investigating and holding medical practitioners and other health professionals accountable by applying sanctions or warnings. GPs I spoke to have confirmed that it is their impression that the new Commissioner is not one to take much of a "firm" or "adversarial" approach. Investigations and decisions that lead to disciplinary or other firm actions appear to be avoided, and a "consultative" approach is taken to "resolve" issues.

Now one may wonder and speculate re what motivated "Theo" Baker to come back to the HDC Office, and why National Party member and now Minister of Health Tony Ryall appointed her.

There was certainly some debate and controversy about the appointment of Anthony Hill as new Health and Disability Commissioner before, which the Otago Daily Times wrote about here:

http://www.odt.co.nz...ioner-paramount
(by the way, the author of that article, Stuart McLennan, was a former staff member of that HDC Office himself, as Complaints Assessor!)

On reading that ODT article, one has to ponder on Dr Des Gorman and his role again, being head of a number of key health administrations (now ACC Board member, so far Health Workforce NZ Chief, National Health Board leader, senior staff member at the Medical School of Auckland Uni, and so forth). He is apparently also a member of an international organisation called the Medical Protection Society! See this for VERY interesting information:

http://www.medicalprotection.org/
http://www.medicalpr...org/newzealand/

So Dr Gorman is a clear advocate for protecting the interests of medical professionals, and he was like other key stakeholders (government and other providers and so forth) tasked with the selection process preceding the appointing of the new Health and Disability Commissioner, whom they chose Anthony Hill to be.

Given this information, questions arise about the apparent lack of more resolute enforcing, of sanctioning actions and investigations, that have been taken and started under the present Commissioner and his team. Theo Baker herself does anyway appear to blend in well with the Commissioner and their office personnel, who now operate under the top Commissioner Anthony Hill, formally appointed by Minister of Health Tony Ryall.

Until this day, the 4th of May 2013, only 7 cases have been decided on in this year, which involved proper investigation and an official, published statement by that office:

http://www.hdc.org.nz/decisions--case-notes/commissioner's-decisions

That is a marked drop from what former, apparently more effective and committed Commissioner Ron Paterson did in the way of investigations and decisions upon complaints. He established a clear track record and enforced some reliable standards that others should be measured by.

So with the new approach and the drop in investigations, same as fewer published cases, one may wonder, do so very few medical misadventures or other mistakes or "failings" happen in the medical and treatment professions in New Zealand these days? That is also in view of an increased population for the country. Well, it seems like with statistics on welfare, suddenly figures improve under a more cost saving focused, and burden off-loading kind of government, and the particular commissioners and other key office holders they have appointed.

Any person who has had reason to make a complaint to the H+D Commissioner (numbers are rather unchanged or even up with these), and who wonders, why no satisfactory action is taken, just needs to draw their conclusions from reading and studying the info found under links shown above! It seems that if it does not involve any serious physical or psychological harm, or even life or death issues, not that much can be expected. A high work-load may of course contribute to that.

Sadly fairness, reasonableness, objectivity and accountability no longer appear to be a priority in many assessments and decisions to be made by many office holders in such key institutions in New Zealand, I am afraid!

Do not be surprised, if you are getting fobbed off, somehow "off-loaded", treated with insufficient respect, dignity and honesty, be this by ACC, WINZ or any health professional, acting under stress, pressures, and demands to perform responsibilities in a cost saving environment. It is time to worry, really!

Strangely that one very recent decision was about a WINZ designated doctor, who is well known to be a much used and seemingly preferred assessor for MSD and WINZ. The HDC Deputy Commissioner appears to have let him off the hook despite of apparently quite biased and questionable conduct, besides of a totally unfounded diagnosis and “recommendation”. The assessment and examination in question just happened to be too long ago and his statement was "contrary" to the one by the complainant, was the simple conclusion, while an abundance of clear, well-documented evidence was apparently not considered worth looking at.

So the matter was "considered" to "not be worth investigating further. Irrelevant information was given consideration and relevant facts were in part also ignored or not noticed.

Add the dots together: Some New Zealand institutions and agencies are no longer the transparent, accountable and fair ones that many still think they are.

The particular one "decision" referred to is being disputed, and no further details can and will be made available on this at this stage, for the sake of justice and the intention to avoid any "prejudice". It will be interesting what will come out of this.

Yet other decisions that have been learned about anecdotally and more, they speak a loud voice of extreme concern, about where some institutions like the Health and Disability Commissioner's Office are worryingly heading.

Be always mindful, alert and aware, dear folks!

Marc

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#2 User is offline   Marc 

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Posted 05 May 2013 - 03:18 AM

View Postjaffa, on 04 May 2013 - 12:25 PM, said:

bump


I am not sure what you means by "bump", but I made that post because unacceptable and improperly conducted assessments by medical professionals done for "third parties" can be disputed and complained about to the Health and Disability Commissioner. Naturally other complaints are the standard "fare" the Commissioner's offce deals or is supposed to deal with, but assessments that also involved face to face interviewing and physical examinations fall under the scope of the Commissioner's responsibility and authority.

The following is an excerpt from a document under reference C014605 that the Medical Council has published on this kind of matter:

"Review of medical assessment opinions

23. The Health and Disability Commissioner has concluded
that complaints about the contents of an assessment
report and complaints about purely paper-based reviews
are usually not within the Commissioner’s jurisdiction.
The Commissioner cannot look into complaints about
these matters, and you should direct such complaints
directly to the third party, as the party best placed to
address these concerns.

24. Concerns about the conduct of a non-treating doctor
during a face-to-face assessment may fall within the
Health and Disability Commissioner’s jurisdiction, and
such concerns should be directed to the Commissioner’s
office. However, concerns about a non-treating doctor
providing an opinion on a matter outside his or her scope
of practice, or a non-treating doctor’s competence should
be directed to the third party or the Medical Council."

The document titled "Non-treating doctors performing medical assessments of patients for third parties" can be found by clicking this link:

http://www.mcnz.org....ing-doctors.pdf

Hence it should be of interest to ACC claimants who may also face assessments that could be conducted in an inappropriate manner by a possibly biased assessor.

The example mentioned above shows though, that the Health and Disability Commissioner and Deputy Commissioner seem to rather not wish to deal with such flawed assessments, which is appalling, as the Commissioner has a responsibility to look at professional misconduct and whatever that leads to breaches of rights the Commissioner is supposed to uphold and enforce.

Breaches of rights and improperly conducted assessments by medical professionals should also be possible to be taken to a court, yet no court will bother hearing any case involving health and disability issues, that have not previously been dealth with by the Health and Disability Commissioner. So if the Commissioner simply dismisses a complaint by using a cop-out or white-wash approach, this frustrates a client's and patient's right to justice.

So there we have another institution that has been appointed in a biased manner by apparently biased, selected panel members, who also seem to have been mindful of what the Minister may have wished to prefer.

This is stuff the mainstream media should be looking into, but are they?

It is a sad state of affairs what goes on in New Zealand. Rights of citizens and patiens are merely stated on paper, but otherwise often totally unenforceable and thus meaningless.

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#3 User is offline   Russel 

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Posted 05 May 2013 - 07:53 AM

In other words the HDC does not exist for the benefit of the plebs.
They are there to protect the medical profession.(and ACC)
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#4 User is offline   Marc 

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Posted 05 May 2013 - 05:01 PM

View PostRussel, on 05 May 2013 - 07:53 AM, said:

In other words the HDC does not exist for the benefit of the plebs.
They are there to protect the medical profession.(and ACC)


@ Russel

Yes, one must wonder, how much of this kind of a very concerning situation is perhaps due to some intended "design", or otherwise perhaps rather due to budgetary constraints, personal limitations, too high case or complaint work loads or whatever. In any case, an office like that of the 'HDC' should never even be exposed to the slightest risk of being viewed as having any possible bias, lack of competence or of whatever may impact negatively on their handling of any complaints, be they more or less serious of a nature.

Looking at the selection and appointment processes, who was involved, and what persons have been chosen - with particular professional backgrounds - does give reason to suspect that not all is done well and fair by the selectors, and consequently by staff at this office.

More public scrutiny appears to be well justified.

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#5 User is offline   Empathy 

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Posted 06 May 2013 - 01:58 PM

HDC were of no use to me! Basically said they weren't allowed to get involved in ACC issues and ACC were allowed to do virtually what they want.
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#6 User is offline   netcoachnz 

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Posted 06 May 2013 - 02:10 PM


Commissioner to investigate baby death


MARYANNE TWENTYMAN
Source { http://www.stuff.co....gate-baby-death }
Last updated 05:00 05/03/2013 Posted Image

GRIEF: Hamilton mother Denise Simpson-Vogan is hoping an investigation by Health and Disability Commissioner Anthony Hill will about the death of her baby boy Axton.
The Health and Disability Commissioner is to formally investigate the death of Hamilton baby Adam Barlow, who died following a botched birth in 2009. Commissioner Anthony Hill recently confirmed the investigation would proceed after Adam's parents, Robert and Linda Barlow, wrote to him in June last year outlining concerns into their son' death.

This followed last year's decision by Hamilton coroner Gordon Matenga, who ruled that Adam died in October 2009 due to intrapartum asphyxia - a lack of oxygen to the brain and vital tissues during labour.

Mr Matenga also outlined a "series of failures" by midwife Jennifer Rowan, now known as Jennifer Campbell, that contributed to Adam's death, including failure to recognise the progress of labour was not normal; failure to convey urgency on transfer to Waikato Hospital staff; and failure by both Miss Rowan and hospital staff to recognise the urgency of Mrs Barlow's delivery.

In a statement released yesterday, Mr Barlow said "we do not want to make any comments at this early stage of the HDC [Health and Disability Commission] investigation".

Mr Hill has also agreed to investigate the death of Rotorua baby Axton Mead, who died in February 2009 from perinatal asphyxia, a haemorrhage on his brain and a background of foetal malnutrition.

Following an inquest into Axton's death, Mr Matenga found midwife Priscilla Punita's care during labour fell below expectations after she misread foetal heart or CTG monitoring records taken by maternity unit staff, and removed the equipment. He believed Axton may have lived if his heart rate had been monitored during labour.

Midwifery Council chief executive Shxxxxxxx Cole said Ms Punita had since retired from her midwifery role and said she was confident the council had done everything in a timely manner.

"How long other agencies take to investigate is a matter for them but the council is confident that it took immediate and appropriate action as soon as it received the notifications," she said.

According to the HDC website, only 10 per cent of complaints are investigated.

Axton's mother, Denise Simpson-Vogan, who now lives in Hamilton, was initially told it was unlikely her son's death would be investigated, according to Action to Improve Maternity founder Jenn Hooper.

"It has certainly taken a lot of work to get this investigation confirmed but we are certainly thrilled with the result," she said.

However, based on previous HDC outcomes, Mrs Hooper said she was not overly confident the investigation would end with a satisfactory result for the families.

"I don't know anyone that has been close to satisfied with the outcome of an HDC investigation and to be honest I don't see that [Mr Hill] will have enough power to bring about the kind of results we would like to see - such as midwives being struck off," she said.

But Mrs Hooper said the HDC process was an important step for grieving families.

"If you want to sit back and remember your baby knowing you have done everything you can for them, then you have to go through this process."

- © Fairfax NZ News


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#7 User is offline   Marc 

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Posted 06 May 2013 - 05:01 PM

View PostEmpathy, on 06 May 2013 - 01:58 PM, said:

HDC were of no use to me when I was being froced to see a Dr who I didn't want to see, in the end I said I wouold tape it and he said He would deny me the right to tape it. ACC got him to do my assessment without seeing me and against my wishes. I had told ACC if they sent me to the Dr I wanted I would not tape the assessment.I can't see how that is acting in good faith and treating you with respect. I rang the HDC and they basically said becauise it is ACC they could not help.


'Empathy' -

It was probably not just for the fact that this involved an assessment "requested" by ACC, but rather for the fact, that this assessment was simply done on the papers presented to the assessor. The HDC will in all likelihood not even look at any case, where an examination or assessment was not done face to face and with the presence of the person to be assessed. The Medical Council has published a document elaborating on such scenarios (see one of my comments above).

The HDC "may" look at misconduct of an assessor, or any other forms of breaches of rights under the 'Code of Health and Disability Services Consumers' Rights' (see also: http://www.hdc.org.n...-code-of-rights), if the examination/assessment was done with the client/patient to be assessed being present.

If that is not the case, the HDC will conveniently tell you they cannot assist, as they would not be interested. They have more than enough complaints than they can handle with their staff, so you will have been at the lower end of "priority" to them, no matter how sensitive and important an issue this was with you.

It pays to also look at the ACC legislation, and the HDC will likely also say, that they are not responsible, because you could ask for a "review" under the ACC statute. I cannot believe they can simply "force" a claimant to see one particular assessor, when fair and reasonable objections are expressed. But your example shows, they try and do get away with this too often.

Passing responsibilities is day to day occurrence, and the HDC is doing this day in and out.

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#8 User is offline   Marc 

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Posted 06 May 2013 - 05:10 PM

View Postnetcoachnz, on 06 May 2013 - 02:10 PM, said:

Commissioner to investigate baby death


MARYANNE TWENTYMAN
Source { http://www.stuff.co....gate-baby-death }
Last updated 05:00 05/03/2013 Posted Image

GRIEF: Hamilton mother Denise Simpson-Vogan is hoping an investigation by Health and Disability Commissioner Anthony Hill will about the death of her baby boy Axton.
The Health and Disability Commissioner is to formally investigate the death of Hamilton baby Adam Barlow, who died following a botched birth in 2009. Commissioner Anthony Hill recently confirmed the investigation would proceed after Adam's parents, Robert and Linda Barlow, wrote to him in June last year outlining concerns into their son' death.

This followed last year's decision by Hamilton coroner Gordon Matenga, who ruled that Adam died in October 2009 due to intrapartum asphyxia - a lack of oxygen to the brain and vital tissues during labour.

Mr Matenga also outlined a "series of failures" by midwife Jennifer Rowan, now known as Jennifer Campbell, that contributed to Adam's death, including failure to recognise the progress of labour was not normal; failure to convey urgency on transfer to Waikato Hospital staff; and failure by both Miss Rowan and hospital staff to recognise the urgency of Mrs Barlow's delivery.

In a statement released yesterday, Mr Barlow said "we do not want to make any comments at this early stage of the HDC [Health and Disability Commission] investigation".

Mr Hill has also agreed to investigate the death of Rotorua baby Axton Mead, who died in February 2009 from perinatal asphyxia, a haemorrhage on his brain and a background of foetal malnutrition.

Following an inquest into Axton's death, Mr Matenga found midwife Priscilla Punita's care during labour fell below expectations after she misread foetal heart or CTG monitoring records taken by maternity unit staff, and removed the equipment. He believed Axton may have lived if his heart rate had been monitored during labour.

Midwifery Council chief executive Shxxxxxxx Cole said Ms Punita had since retired from her midwifery role and said she was confident the council had done everything in a timely manner.

"How long other agencies take to investigate is a matter for them but the council is confident that it took immediate and appropriate action as soon as it received the notifications," she said.

According to the HDC website, only 10 per cent of complaints are investigated.

Axton's mother, Denise Simpson-Vogan, who now lives in Hamilton, was initially told it was unlikely her son's death would be investigated, according to Action to Improve Maternity founder Jenn Hooper.

"It has certainly taken a lot of work to get this investigation confirmed but we are certainly thrilled with the result," she said.

However, based on previous HDC outcomes, Mrs Hooper said she was not overly confident the investigation would end with a satisfactory result for the families.

"I don't know anyone that has been close to satisfied with the outcome of an HDC investigation and to be honest I don't see that [Mr Hill] will have enough power to bring about the kind of results we would like to see - such as midwives being struck off," she said.

But Mrs Hooper said the HDC process was an important step for grieving families.

"If you want to sit back and remember your baby knowing you have done everything you can for them, then you have to go through this process."

- © Fairfax NZ News



A sad and shocking story. Yes, for sure, one would expect that the HDC would investigate such serious cases. Indeed, the HDC Office was established to address such and many other issues. But when hearing that so few that take complaints to the HDC have anything satisfactory to say, then this proves that the work and outcomes by this office leave to be desired. I would think that the percentage of truly "investigated" and resolved complaints is by now well below the ten per cent mark, going by cases published and recorded.

Best wishes to the parents of the baby that died in this case.

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#9 User is offline   StarSista 

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Posted 08 May 2013 - 01:37 PM

A friend of mine has sent me this:

Complaint

[email protected]> Tue, May 7, 2013 at 11:33 AM
To: hdc <[email protected]>, [email protected]>
Cc: Investigations <[email protected]>
Reply | Reply to all | Forward | Print | Delete | Show original
Hello HDC, and HRC, and Privacy Commission,

I would like to officially complain about the way that people with
disabilities are discriminated against in regards to travel mileage
reimbursement.

People with disabilities are allowed to claim 27c per km for their
travel, and everyone else is allowed to claim 74c per km.

This is blatant discrimination, and must be fixed!!
It also breaks the law!!

Please advise what urgency you will give this matter to resolution,
and to fix the breach, and the breaking of the law.

I await your response.

xxxx


Travel mileage reimbursement


From: [email protected]> Wed, May 8, 2013 at 9:52 AM
To:[email protected]
Reply | Reply to all | Forward | Print | Delete | Show original

Dear xxxx

Thank you for your complaint regarding the discrepancy between the travel mileage reimbursement for people with a disability. Please note your concerns are best addressed by the Human Rights Commission.

We note that you have already approached the Human Rights Commission with your concerns, and we wish you well in resolving this matter with them.

Kind regards,


Office of the Health and Disability Commissioner
PO Box 1791, Level 10 Tower Centre, 45 Queen Street
Auckland 1140
0800 11 22 33 (extn 5027)
http://www.hdc.org.nz


Reply | Reply to all | Forward | Print | Delete | Show original

From: [email protected]> Wed, May 8, 2013 at 10:28 AM
To: [email protected]>
Reply | Reply to all | Forward | Print | Delete | Show original

Thankyou for your response xxx,

Would you mind telling me why, when its a disability issue - clearly -
that you are leaving it to Human Rights. I have not had any response
from them.

Can you please let them (HRC) know that you as HDC, arent prepared to
handle this Disability issue, as I think HRC may think that HDC are
the appropriate avenue for this.

Please advise.


xxxx


Reply | Reply to all | Forward | Print | Delete | Show original


From: [email protected]> Wed, May 8, 2013 at 11:02 AM
To: [email protected]>
Reply | Reply to all | Forward | Print | Delete | Show original
Hello xxxx

Are you able to clarify what institution or situation you are referring to?

Kind regards,


Office of the Health and Disability Commissioner
PO Box 1791, Level 10 Tower Centre, 45 Queen Street
Auckland 1140
0800 11 22 33 (extn 5027)
http://www.hdc.org.nz




From: [email protected]>
To: [email protected]>
Date: 08/05/2013 10:28 a.m.
Subject: Re: Travel mileage reimbursement
- Show quoted text -


Reply | Reply to all | Forward | Print | Delete | Show original



[email protected]> Wed, May 8, 2013 at 11:51 AM
To: [email protected]>
Reply | Reply to all | Forward | Print | Delete | Show original
Hello xxxx.

I am referring to the fact, that people with disabilities, and
disability type incomes, can only claim mileage at the rate of 27c per
km, when the rest of society can claim mileage via IRD at 74c per km.

It is not an issue of clarifying which organisation, as it is not an
organisation issue, but rather, a discrimination issue towards people
with disabilities.
And considering most people with disabilities, are on a reduced income
level than mainstream society, it is even more important that people
with disabilities receive equal Rights in this area, and are able to
receive the exact same financial reimbursements that the more
fortunate people who dont have disabilities get.

It makes no sense at all the way it currently is - give those who dont
have disabilities 74c, and those who do have disabilities 27c. I
believe it is a breach of NZ Law to discriminate against people with
disabilities, and if this problem doesnt belong to the Govt agency
that is supposed to help people with disabilities, then who on earth
does it belong to.

xxxx

>
> From: [email protected]>
> To: [email protected]>
> Date: 08/05/2013 10:28 a.m.
> Subject: Re: Travel mileage reimbursement
>
[size="5"][i][b]
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#10 User is offline   StarSista 

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Posted 08 May 2013 - 05:02 PM

From:[email protected]> Wed, May 8, 2013 at 4:42 PM
To:[email protected]>
Reply | Reply to all | Forward | Print | Delete | Show original
Hello xxxx

The Health and Disability Commissioner's complaints resolution role is restricted to matters relating to the quality of health or disability services delivered to consumers. The matter you have raised is outside the Commissioner's jurisdiction, as you have not complained about the quality of a health or disability service provided to you. Your complaint instead relates to the level of funding and reimbursement available to disabled consumers, and specifically raises concerns that disabled consumers are discriminated against. As such, your concerns are best dealt with by the Human Rights Commission (HRC).

As your complaint does not come within the Commissioner's jurisdiction, this Office is not lodging the matter as a formal complaint, and therefore will not be referring your concerns to the HRC. We suggest you wait until you receive a response from them.

Kind regards,

xxx

Office of the Health and Disability Commissioner
PO Box 1791, Level 10 Tower Centre, 45 Queen Street
Auckland 1140
0800 11 22 33 (extn 5027)
http://www.hdc.org.nz
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#11 User is offline   Marc 

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Posted 10 May 2013 - 12:20 AM

What is of utmost concern is that the Health and Disability Commissioner is under the Health and Disability Commissioner Act 1994 in charge of a number of tasks and responsibilities, which are outlined under section 14 of that Act. Some or a number of actions can be taken by the Commissioner, while others are more or less mandatory.


For instance 14 (1) has the following subsections and provisions, amongst others:


"(da) to act as the initial recipient of complaints about health care providers and disability services providers, and to ensure that each complaint is appropriately dealt with:

(e) to investigate, on complaint or on the Commissioner 's own initiative, any action that is or appears to the Commissioner to be in breach of the Code or, in the case of conduct that occurred before the enactment of the Code, in breach of certain disciplinary standards:

(f) to refer complaints, or investigations on the Commissioner 's own initiative, to the Director of Proceedings for the purpose of deciding whether or not any further action should be taken in respect of any such breach or alleged breach:

(g) subject to section 15(2), to make recommendations to any appropriate person or authority in relation to the means by which complaints involving alleged breaches might be resolved and further breaches avoided:..."



The Commissioner also has certain discretions to not investigate complaints, e.g. under section 38:



"38 Commissioner may decide to take no action on complaint

(1) At any time after completing a preliminary assessment of a complaint (whether or not the Commissioner is investigating, or continuing to investigate, the complaint himself or herself), the Commissioner may, at his or her discretion, decide to take no action or, as the case may require, no further action on the complaint if the Commissioner considers that, having regard to all the circumstances of the case, any action or further action is unnecessary or inappropriate.

(2) The Commissioner' s consideration under subsection (1) may, in particular, take into account any of the following matters:

(a) the length of time that has elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made:

(b ) whether the subject matter of the complaint is trivial:

(c ) whether the complaint is frivolous or vexatious or is not made in good faith:

(d) whether the person alleged to be aggrieved does not want any action taken or, as the case may be, continued:

(e) whether there is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to an Ombudsman, that it would be reasonable for the person alleged to be aggrieved to exercise.

(3) Subsection (2) does not detract from the generality of subsection (1).




See the following links for more details about the relevant legislation:


http://www.legislati.../DLM333584.html



In any case the Commissioner is responsible for publishing and maintaining the 'Code of Health and Disability Services Consumers' Rights', to publicly inform about these, to ensure that compliance is ensured by service deliverers and professionals involved in that, and to ensure or enable that consumers can make complaints, can consult advocates on matters, and so forth.



The following links give details about that Code on relevant websites:


http://www.hdc.org.n...-code-of-rights

http://www.legislati...test/whole.html



When looking at some of the above comments and stories, same as many others I have learned about, one has to wonder, to what degree the members and staff at the Office of the Health and Disability Commissioner are performing their responsibilities. It appears that various complaints do only get investigated when there are extremely serious cases of physical, psychological or psychiatric harm that were caused. Only a small to tiny percentage of cases appear to get properly investigated and resolutely acted on after all.


Yet in view of the fact, that the Medical Council does usually not accept and investigate any complaints against their members, unless a complaint has first been made to the Commissioner, it would seem that the Health and Disability Commissioner and his Office have a very, very important and highly responsible role to play, when it comes to address professional misconduct and breaches of the above mentioned rights of consumers of health and disability services. Is the Commissioner meeting these fair and justified expectations though?


In any case, the Medical Council has the position just stated, which can be found under this following link:


http://www.mcnz.org....ss-to-practise/



See this excerpt for instance, found under " Making a complaint" and "the complaint process":


" Complaints raised by, or on behalf of, patients must be notified to the HDC. The HDC process looks at the complaint from a health consumer perspective. For complaints raised by a doctor, or another health professional, about another doctor, the process is different, the complaint comes to us."


Also this ...

"HDC Process

On receipt of a complaint from a patient or health consumer, the HDC is required to make a preliminary assessment of the complaint to decide what course of action, if any, is appropriate. The HDC Act supports resolution of complaints at the lowest appropriate level.

The HDC may refer the complaint onto, or back to, the Medical Council. We then must act promptly to decide what action should be taken.
"



Now given the fact that so many matters brought before the apparently over-worked, under-resourced and under-staffed Office of the H.D.C. are not ending up in investigation, and are in many cases "resolved" without any sanctions or further legal proceedings imposed, one must get very worried about what goes on. Yes, the bulk of complaints to the HDC seem to lead to nothing much at all, as they do not even get accepted as valid complaints! It all seems to be a bit of a catch-22 situation for many that have valid and serious issues with medical professionals and providers, and who want or really need to make a complaint. Without first complaining to the Health and Disability Commissioner, the Medical Council is highly unlikely to accept any complaint directed to them full stop!

If this set-up is intentional and by design, then it is an appalling state of affairs, basically denying very many justice, which also could be seen as a breach under the Bill of Rights Act, I presume.

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#12 User is offline   Marc 

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Posted 01 July 2013 - 10:49 PM

Further to Deputy Health and Disability Commissioner Theo Baker some more interesting information is worth looking at:

Theo Baker does on her Linkedin page show that she did from March 2010 to April 2011 work for a year and 2 months as Senior Lawyer for Capsticks LLP.

http://nz.linkedin.c...aker/61/301/b64

That was right before resuming a role at the Office of the Health and Disability Commissioner in July 2011, where she is employed in the senior role ad Deputy Commissioner to this day.

She had been Director of Proceedings for the HDC Office for about 5 years until 2009.

One wonders why she practically "changed sides" as a supposed legal expert at Capsticks, which is a senior legal practice in the United Kingdom, serving also the National Health Service (NHS) there. What does it say about a Commissioner, that in one job for a time acts in a role, where she is supposed to enforce the 'Code of Health and Disability Services Consumers' Rights' here in New Zealand, and in another job - for another period, acts in a role defending health service providers like the the b]NHS[/b] and its various service units or departments?

Capsticks LLP are quite open about their commitment to serve as the legal representatives of health and disability service providers, now having even further solidified their "partnership" with the NHS:

http://www.nhsemploy...laboration.aspx

http://www.capsticks.co.uk/

http://www.capsticks...-health-law.php

http://www.capsticks...-management.php

http://www.capsticks...medical-law.php

http://www.capsticks...-resolution.php


INSERTION / AMENDMENT TO ORIGINAL COMMENT - 11 MARCH 2014:

Try this link for particular details on the ' Capsticks ' website, as like also in comment number 1 above, there have been issues with the links in this ' comment ', possibly due to website reconstruction:
http://www.capsticks.com/



So in view of Theo Baker's work for Capsticks LLP, and her apparently having no concerns about one year serving health service recipients and their interests, and in another year the health service providers and their interests, one may not be surprised about some of her decisions, which in part have been criticised by patients or their relatives, who filed complaints to the HDC Office.

Here just a few examples that were mentioned in the media:

"Watchdog's refusal to investigate death denies us justice, family say"- New Zealand Herald, 25 April 2013

http://www.nzherald....jectid=10879632


"DHB told to apologise to family after patient's records botched", New Zealand Herald, 30 August 2012

http://www.nzherald....jectid=10830399


Anthony Hill has as Health and Disability Commissioner ensured independence of their office and that natural justice would be followed. See his response to a critical article in the Otago Daily Times from 23 December 2011:

http://www.odt.co.nz...ssessment-facts

He writes the following:

"Every complaint that is received by my office is carefully considered and any decision made arises from an unbiased assessment of the facts at issue."


This is the article by Stuart McLennan in the same paper, former HDC complaints assessor, from 21 December 2011 that caused Anthony Hill to respond:

http://www.odt.co.nz...ioner-paramount


Whether this is applied in all cases, as Anthony Hill suggests in his response in the Otago Daily Times from 23.12.2011, one must really wonder about. Anecdotal feedback that I have received suggests it is not always applied.

As the New Zealand Herald articles above suggest, there is dissatisfaction amongst some complainants. I really wonder how many people that made complaints about health or disability service providers feel, that the HDC Office did not deliver a fair, reasonable and objective assessment of the cases - and decisions on them - which they presented. How many out there feel they were let down by the HDC Office? Perhaps some may wish to share their experiences?

Also one must presume that if a decision by the HDC Office is not accepted and seen as reasonable, then perhaps there is also evidence of the law not having applied properly. Natural justice comes to mind. In such a case a judicial review application to a High Court should be possible, as far as I can assess.
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#13 User is offline   Marc 

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Posted 05 July 2013 - 01:45 AM

Here is yet another media report on affected family members dissatisfied with a decision by the Health and Disability Commissioner, being one from 06th June 2012 in the Bay of Plenty Times, titled "Investigation labelled 'a whitewash'":

http://www.bayofplen...tewash/1407472/


Extract from that article:

"A Tauranga family are "angry and disillusioned" at an investigation into the death of their son, calling it a "whitewash" by medical professionals.

Brad Milne's death, in July last year, catapulted his family into a tumult of grief and a frustrating search for answers.

His parents Colin and Marianne lodged a formal complaint regarding the lack of urgency they felt Brad's case had received in the lead-up to his death.

But nine months later, Health and Disability Commissioner (HDC) Anthony Hill, who investigated the complaint, concluded that "based on the symptoms he (Brad) reported and presented with, the tragic outcome could not have been foreseen by the providers involved in his care".

Mr Hill's decision was "to take no further action" as it appeared Brad had "received an appropriate standard of care".

The outcome received a withering response from Colin Milne, who wrote a letter of complaint to the commissioner on behalf of his deceased son and the Milne family.

"We've had a letter back saying their legal team are going to review the whole thing, so we'll see," he told the Bay of Plenty Times Weekend."



"Mr Milne also wrote of his disgust at the lack of family involvement in the report's compilation.

"We are amazed and angry that in reviewing our complaint you have not sought the input of Brad's family and friends" and had instead "relied solely on the statements of the medical practitioners involved in Brad's treatment"
."



...I wonder what has come out of this after all. Perhaps the matter is still being "reviewed", as the HDC office takes a lot of time processing, assessing and investigating many cases. Any feed-back will be welcome here.
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#14 User is offline   Compassion 

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Posted 05 July 2013 - 05:10 PM

Just was told by an advocate that you can complain direct to medical council and they will investigate it it is done through a another dr.

Our complaints apparently go to HDC, or then ACC but if your GP or specialist lodges the complaint the med council take care of it. So you show your dr the naughty and neglectful things your dr did and they can start this process.
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#15 User is offline   Marc 

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Posted 05 July 2013 - 06:53 PM

View PostCompassion, on 05 July 2013 - 05:10 PM, said:

Just was told by an advocate that you can complain direct to medical council and they will investigate it it is done through a another dr.

Our complaints apparently go to HDC, or then ACC but if your GP or specialist lodges the complaint the med council take care of it. So you show your dr the naughty and neglectful things your dr did and they can start this process.



Hi 'Compassion' -

Yes, I think you are right on that technical approach, going via a medical practitioner, in many cases ideally one's own doctor. It may be relatively "easy" to start that if it involves clearly evident medical misadventure, showing in physical harm suffered, e.g. infected wounds, ill-performed operations ending in malformations, malfunction or any other sorts of damages.

It gets difficult when it is about matters that are outside of your doctor's scope of practice, and which she/he cannot diagnose for whatever reason.

Most certainly it gets difficult with mental health issues.

Even if you can involve a trusted expert, they will need to rely on what they are presented, and I sadly know too many practitioners of whatever health profession, who would avoid getting involved giving evidence against a colleague.

In New Zealand it often appears to be an unwritten rule, for medical practitioners and other health professionals, to not criticise their colleagues, unless there is overwhelming evidence to prove that something very serious has gone wrong. In many cases those will be life or death situations, and serious harm.

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#16 User is offline   Marc 

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Posted 27 September 2013 - 02:03 AM

Here are some news-media reports on our Health and Disability Commissioner:

The first one I printed out from the web and scanned it into a PDF file, which is attached. It is titled "New HDC won't be 'new broom'", which is an article from Jodi Yeats, and which was published by 'NZ Doctor' magazine on 19 May 2010.

Already then it was clear that there were not going to be any expected major changes or any improvements in the running of that office. Anthony Hill was quoted as saying before starting is job: "Ron [Paterson] has done a first class job and the office is running well". Anthony Hill worked as Director General for the Ministry of Health, and also in other roles in that ministry, altogether for 15 years. He was also formerly the Ministry's Chief Legal Advisor, the article says, so one must presume he knows all the networks and systems, many of the senior and not so senior doctors, and is really nothing but an official careerist, who seems to have been hand-picked by a selected panel, to become Commissioner.

It seems a bit like a cat hired to guard the mice, or an employer who suddenly chooses to become a union advocate, or whatever.

He is quoted as also saying: "The quality agenda asks "what happened, rather than who did it"". He furthermore says: "It is about learning and strengthening the system". He then also refers to the then new Health Quality and Safety Commission.

What the article reports is basically also just about the same, what I have heard from doctors not so long ago, and Anthony Hill's track record shows it to this date. His office does under his leadership only take firm, decisive disciplinary - or other similar actions - in very few cases, the rest is all about "talking things over" and "improving" the system.

In the article one can read also: "Both the NZMA and RNZCGP have welcomed the appointment and say they look forward to supporting and assisting the new health and disability commissioner". Here are the very organisations representing the ones to be checked, actually cheering the man on.


So all of us who may expect some proper complaint resolution, where the professionals that made mistakes or committed misconduct, or seriously breached the Code of Ethics, are held accountable, we should not be surprised that not much is done that "harms" any professional. Such a Commission is a sick joke, really!


The other article is rather short, and was a news-item on 1ZB from 24 July this year, where the Minister for Health Tony Ryall is challenged by opposition health spokeswoman Annette King, to do something about the funding issues the Health and Disability Office has. It is titled "Health Minister told cough up for disability". The HDC Offices are apparently well short of funds, while probably having a high work-load. According to that short article financial deficits can be expected to 2015 if not 2016, should they not be granted extra shortly.

That tells us of course, that they will be working with too few staff trying to cope with increasing work-loads. Naturally, the not so "pressing" complaints will thus be "off-loaded" a.s.a.p., as part of "prioritising". Of course their legal staff will know all the ins and outs, to use the gaps and convenient provisions in the law, to find reasons to get away with this.


I ask, when is New Zealand ever going to get true standards and quality control for health and disability services? When are we getting a Health and Disability Commission that actually serves the persons worst affected, that is the end users of health and disability services, who get maltreated, neglected, served poorly, or harmed by incompetent or Code breaching doctors and other health professionals?


Answers to the questions will be welcome, Mr Ryall, same as Miss King, once you are at the helm again!


Link to the 1ZB story: http://www.newstalkz...-for-disability
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#17 User is offline   unit1of2 

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Posted 30 September 2013 - 02:45 PM

View PostMarc, on 05 July 2013 - 06:53 PM, said:

Hi 'Compassion' -

Yes, I think you are right on that technical approach, going via a medical practitioner, in many cases ideally one's own doctor. It may be relatively "easy" to start that if it involves clearly evident medical misadventure, showing in physical harm suffered, e.g. infected wounds, ill-performed operations ending in malformations, malfunction or any other sorts of damages.

It gets difficult when it is about matters that are outside of your doctor's scope of practice, and which she/he cannot diagnose for whatever reason.

Most certainly it gets difficult with mental health issues.

Even if you can involve a trusted expert, they will need to rely on what they are presented, and I sadly know too many practitioners of whatever health profession, who would avoid getting involved giving evidence against a colleague.

In New Zealand it often appears to be an unwritten rule, for medical practitioners and other health professionals, to not criticise their colleagues, unless there is overwhelming evidence to prove that something very serious has gone wrong. In many cases those will be life or death situations, and serious harm.



Correct... when you say about Specialists not wanting to criticise their colleagues. On two seperate occassions, two totally different doc's, years apart

1st Doctor, 'I play golf with ****, and your wanting me to report on his work,'..end quote.

This doctor/specialist at the end of the day, did have to write a report on his 'mate/golf buddy', and I have to say, hat off to him, he was honest in his report and he didn't deny, or try to hide the most very obvious issues.



2nd, Doctor, 'I worked in *** alongside Mr **** for along time, and he's a very, very good doctor ..' end quote.

My response to that was, 'oh my gawd, here we go again, work buddy clicks. So he was so, so good he'd missed the obvious and failed to ...... etc etc'. The doctor whom made that statement to me, did sit up a bit and realised I was right...
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#18 User is offline   Marc 

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Posted 04 October 2013 - 07:50 PM

It appears that the Health and Disability Commissioner and his "team" are getting increasingly more unpopular!

Tonight I came across this, which is a You Tube video showing a person by the name of J.R. Murphy, who has had her own experiences with the office, apparently having made at least one complaint, which seems to be about treatment issues she suffered as a mental health patient (in crisis).





Another link leads to a kind of blog she publishes, which reveals much pain, suffering and disappointments, including mistreatment, which I know a fair few other mental health sufferers can relate to.

http://www.jrmurphyp...category/nzlaw/


The You Tube clip covering an apparently recent protest in the foyer of the Wellington HDC Office was loaded in mid July this year, so this must be an ongoing story.


I will not comment much further on this, as I am unfamiliar with the details of the case, but as the person has gone public, I do not doubt that there is truth in what is being raised here. It astonishes me that such issues are not resolved satisfactorily, yes apparently brushed aside or "dismissed" in some form, while the HDC has for some time also now had a MENTAL HEALTH COMMISSIONER working as part of their team.

So I ask, what do HDC do to listen to, to act upon complaints from, and what do they do to defend and enforce the rights of mentally ill in New Zealand? It seems like they do not do their job, and it only reinforces much of what has been raised for concerns in comments made above in this thread.


And the mainstream media seem to pay little attention to all this!

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#19 User is offline   Marc 

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Posted 09 October 2013 - 11:55 PM

An interesting summary research report from the New Zealand Medical Journal, from 14 May 2010:


"Opportunities to learn from medical incidents: a review of published reports from the Health and Disability Commissioner"



By Sara Temelkovski, Kathleen Callaghan


Link to website for download of original report:

http://journal.nzma....114/content.pdf


"Abstract

Aims To analyse recent published information about the Health and Disability Commissioner 's investigations in the context of The New Zealand Medical Council' s Domains of Competence and investigate possible relationships.

Methods

Retrospective review of 100 recent Health and Disability Commissioner (HDC) investigations published online (all cases reviewed regardless of the Commissioner 's ' verdict '), involving at least one medical practitioner. Breaches and issues raised were categorised according to the Domains of Competence set by the Medical Council of New Zealand.

Results

The most common area of competence identified in the HDC investigations was that of Medical Expert, in 92.9% of cases. The second was Communication, identified in 48.7% of cases. Many cases included more than one Domain of Competence, with an average of 1.8 domains per investigation. Further characteristics of the cases were examined and a number of medical practitioner, patient, setting and timing statistics are also presented.

Conclusions

This study finds medical expertise and communication skills to be the key areas of a medical practitioner 's role that public complaints address. Beyond this, the limited data available through the Commissioner' s published reports make it difficult to draw conclusions which might assist with the improvement of medical practice in New Zealand."


Further Extracts:


"This paper reviews and analyses published reports by the Health and Disability Commissioner (HDC) in the context of expected duties and responsibilities of medical practitioners in New Zealand. The HDC was established under the Health and Disability Commissioner Act 1994 and is guided by the Code of Health and Disability Services Consumers ' Rights (the Code), which helps to determine whether there has been a breach of basic consumer rights. A key component of the Code is a judgement on whether the consumer received " services of an appropriate standard". The HDC aims not to be influenced by outcomes and instead focuses on " the fair, simple, speedy, and efficient resolution of complaints" .1 Much of the Commissioner' s work is not publicly reported, with only the results of his formal investigations published, and therefore available for analysis. The HDC is the largest source of referrals to the Medical Council of New Zealand (NZMC) for competence reviews2. While there is debate about what is meant by " appropriate standard" and how service delivery is measured by the HDC, this study uses the Domains of Competence set out by the NZMC to categorise reported HDC investigation findings."

"New Zealand 's unique environment"

"New Zealand has a unique environment when it comes to dealing with medical complaints. Our system of accident compensation with its focus on " no fault compensation" essentially stops the process of highly adversarial case-by-case litigation. The system was originally designed to reduce the net cost of compensating for accident and injury, however many believe that it is also highly advantageous in terms of promoting system safety."

"Method

The study was undertaken by a summer student in the context of a studentship funded by the NZMC. To conduct this study, 100 published investigations by the HDC were selected for analysis, commencing from most recent (at the time of the study) and moving consecutively back in time until 100 investigations had been found, and after excluding the reported investigations described in the next paragraph. Data on the investigations was obtained from publicly available investigation reports posted on the Health and Disability Commissioner' s website http://www.hdc.org.nz."




*****Personal comment to this review of reports: What is it worth, given the small sample, the selected data and having been conducted by one summer student? It can hardly give a thorough enough picture of what really goes on, but it does at least highlight some major areas of concern, where complaint matters have been formally assessed and investigated!*****

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#20 User is offline   Russel 

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Posted 10 October 2013 - 09:00 AM

More importantly, what actions taken against offending Doctors were initiated either by or because of findings by the HDC. Very little I suspect.
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