Contents:
A) INTRODUCTION
B ) MEDICAL APPEAL BOARD – MEMBERS SELECTED, ENDORSED, APPROVED AND APPOINTED BY MSD ADVISORS AND COORDINATORS
C) THE MEDICAL APPEAL PROCESS AND APPROACH IN DETAIL
D) MEDICAL APPEAL PROCESS - SOME SPECIAL ASPECTS TO CONSIDER
E) WITHHELD MAB STATISTICS AND EXPENDITURE DATA
F) MEDICAL APPEAL BOARD MEMBER PAYMENT
G) OTHER ASPECTS TO CONSIDER RE THE MAB AND THE LEGISLATION
H) LACK OF MEDIA COVERAGE AND TRANSPARENCY OF MAB HEARINGS
I) SUMMARY COMMENTS AND CONCLUSION
A) INTRODUCTION
Persons claiming a social security benefit on the grounds of sickness, injury and/or disability, and who have only limited or no capability to work, have according to provisions in the Social Security Act 1964 (the Act) a right to appeal a decision by Work and Income (WINZ), that was made on medical grounds, or based on the assessed capacity to work.
Apart from separate cases relating to the refusal or cancellation of a “child disability allowance”, such decisions (made by a WINZ case manager) will in most cases affect persons that have applied for, or are already on the Supported Living Payment, or the Jobseeker Support benefit. The latter that may be affected are those who applied for, or are claiming the Jobseeker Support benefit with deferred work test obligations, due to sickness, injury and/or disability.
The appeal right is provided for under section 10B in the Act, which was inserted after the Act was amended following the passing of the ‘Social Security (Benefit Categories and Work Focus) Amendment Act’. The new amendments came into effect from mid July 2013. Prior to that, the same right of appeal was provided under section 53A of the old version of the Social Security Act 1964. The now applicable section 10B is roughly three times as long and complex, as the previous one was, mainly due to the introduction of new benefit types, and additional, new expectations and obligations for the affected beneficiaries. In the newly amended Act section 10B reaches from page 70 to the bottom of page 73, in the former Act the relevant section 53A filled just over one page.
Persons that may see a reason and need to appeal a decision by a WINZ case manager, who again usually relies on “recommendations” or “advice” from employed special “Advisors”, are often those who were asked to be examined by a so-called “Designated Doctor”. Others may have been assessed for their “work ability” by the newly introduced “Work Ability Assessors” that the Ministry of Social Development (MSD) and WINZ now contract with (since early 2014). Given the particular contractual arrangements between MSD and those service providers, and due to certain expectations that MSD places in them, and also due to common practices that are followed, it is not uncommon that decisions are made, which appear questionable, unfounded and even plainly biased.
When being informed of their right to appeal, the affected WINZ “clients” may think they have at least a legally granted chance to access and get “justice” by appealing the disputed, unacceptable decision, and by asking for a “Medical Appeals Board” (MAB) hearing under section 10B.
But the “justice” that may at first sight appear to be ensured, is in reality not quite what it seems. Too many only find out the true value of what the statute and other legal provisions offer them, once they have been through the often very complex, difficult, stressful and at times painful process. Disappointment is what many had already experienced with appeals made under the old Social Security Act before its recent changes, where the process was a fair bit simpler and also handled in a bit more flexible manner. But even then there was often the impression that the Board hearing an appeal was not acting as “independently” as it was supposed to be.
There were certainly a good number of reasons for criticism of the former process of hearing medical appeals under the Act, but with the “reforms” over the last couple of years, the process and activities related to it have now become even more worrisome.
Without any knowledge of the wider public, the Ministry of Social Development has in 2013 made further changes to the Medical Appeal Board hearing process, which are partly not even covered by the Act. They have basically “re-jigged” the whole process in ways, which does in effect make it even harder for appellants to being heard fairly and equitably, yet MSD talk so much more about “natural justice” and the need for it, than they ever did before. This can only be described as a misguided way to offer "justice", while the affected are in fact hardly given fair and reasonable access to justice.
This publication reveals, explains and covers what the current MAB process really means, what changes have discretely been made without public consultation, and how this will adversely affect the appellants in various ways. It is largely based on information in a recently obtained copy of the so-called ‘Medical Appeals Board – Board Members Information Pack’ (released July 2013, in time for the new “welfare regime”). That is the official “guide” or “manual” MAB Members use for “training” and for their guidance in hearing appeals. It has replaced an older version, of which we have a copy also (obtained in 2012). Also used as valuable information sources have been a number of responses from MSD to Official Information Act 1982 (OIA) requests, which contain little known information about the “Advisors” MSD use, about how they use “Designated Doctors” and how the MABs are operating. Additional to that some reports and other relevant information found via certain media and other sources on the internet have been analysed and referred to.
To first of all get an understanding of the law about appeals on medical grounds, here is the actual section 10B as it is valid now:
Extract from the Act:
10B Right of appeal on medical grounds
(1) Any applicant or beneficiary affected may appeal to the Board against a decision of the chief executive that is —
(a) a decision that a claim for a child disability allowance is declined, or that any such allowance is cancelled, in either case on the ground that the child is not a child with a serious disability (within the meaning of section 39A(1) and (2)); or
(b ) a decision that a claim for a supported living payment on the ground of sickness, injury, disability, or total blindness is declined, or that any such benefit is cancelled, in
case on medical grounds; or
(c ) a decision under section 60Q(1)(bb) that a person in receipt of a supported living payment on the ground of sickness, injury, disability, or total blindness has the capacity to comply with obligations under section 60Q(3); or
(d) a decision under section 60Q(1)(bc) that a person in receipt of a supported living payment on the ground of caring for a patient requiring care has the capacity to comply with obligations under section 60Q(3); or
(e) a decision that a claim for jobseeker support on the ground of sickness, injury, or disability is declined on medical grounds or on grounds relating to a person’s capacity for work, or that a person’s jobseeker support on the ground of sickness, injury, or disability is cancelled on medical grounds or on grounds relating to the person’s capacity for work; or
(f) a determination under section 88F(2) that a jobseeker support beneficiary on the ground of sickness, injury, or disability has, while receiving that benefit, the capacity to seek, undertake, and be available for part-time work, and so is required to comply with the work test on and after a date specified in a notice under section 88F(4); or
(g) a confirmation, amendment, revocation, or replacement under section 88F(6) of a determination, and that results in a determination of the kind specified in paragraph (f)
of this subsection; or
(h) a decision on medical grounds under section 88I(2) to decline an application under section 88H(2) by a beneficiary granted jobseeker support (other than jobseeker
support granted on the ground of sickness, injury, or disability) for deferral of all or any of the beneficiary’s work test obligations; or
(i) a decision on medical grounds under section 88I(7) to revoke a deferral granted under section 88I of all or any work test obligations of a beneficiary granted—
(i) jobseeker support (other than jobseeker support granted on the ground of sickness, injury, or disability); or
(ii) jobseeker support granted on the ground of sickness, injury, or disability; or
(j) any of the following made in reliance on any work ability assessment by a health practitioner under section 100B:
(i) a determination whether the person assessed is entitled to a benefit and, if so, what kind of benefit:
(ii) a determination whether the person assessed, being a person in receipt of jobseeker support (other than jobseeker support granted on the ground of sickness, injury, or disability), is entitled on an application under section 88H, or under section 88I(4), to deferral of work test obligations under section 88I:
(iii) a determination whether the person assessed, being a person in receipt of jobseeker support on the ground of sickness, injury, or disability, has for the purposes of section 88F(2) the capacity to seek, undertake, and be available for part-time work:
(iv) a determination whether the person assessed, being a person who is subject to work test obligations or work preparation obligations under section 60Q, has the capacity to meet those obligations; or
(k) a decision under section 116C(2)(a) to the effect that a beneficiary does not have a good sufficient reason, on the ground that the beneficiary is addicted to, or dependent on, controlled drugs, for either or both:
(i) not complying with a drug testing obligation under section 102B(1):
(ii) failing to apply for suitable employment that requires candidates to undertake drug tests; or
(l) a decision to decline a claim for a veteran’s pension under section 70 of the War Pensions Act 1954, or to cancel any such pension, in either case on the ground of the applicant’s or beneficiary’s mental or physical infirmity.
(2) An appeal under this section must be made within—
(a) 3 months after the decision has been communicated to that person; or
(b ) any further period the Board may (if it considers there is good reason for the delay) allow on application made before or after the end of that 3-month period.
(3) The chief executive is bound by the Board’s decision on an appeal under this section.
(4) The Board is to comprise 3 members to be appointed by the chief executive for the particular purpose, being medical practitioners, rehabilitation professionals (as defined in subsection (5)), or other persons having appropriate expertise in the fields of vocational training or vocational support for persons with sickness, injury, or disability.
(5) Rehabilitation professional, in subsection (4), means a person
who is—
(a) a person professionally engaged in the rehabilitation of persons from sickness or accident or with disabilities; or
(b ) a nurse; or
(c ) an occupational therapist; or
(d) a physiotherapist; or
(e) a psychologist.
B ) MEDICAL APPEAL BOARD – MEMBERS SELECTED, ENDORSED, APPROVED AND APPOINTED BY MSD ADVISORS AND COORDINATORS
1. The Ministry itself appoints the MAB Members
A Medical Appeal Board consists of 3 panel members, being mostly medical practitioners (usually GPs, who are mostly also Designated Doctors) and some rehabilitation professionals, such as occupational therapists, physiotherapists, nurses and psychologists. But even “others with appropriate expertise in the fields of vocational training or vocational support” appear to be considered suitable for being appointed to such a Board. See section 10B (4) and (5) for details on this. The newly obtained ‘Medical Appeals Board – Board Members Information Pack’ and information on the WINZ website state, that at least one member of the panel is supposed to be a medical practitioner. One member should also be appointed as chairperson. Officially no more than one panel member is supposed to be a “Designated Doctor” (DD), but as we will see, that limitation is not adhered to in practice.
The Medical Appeal Board is according to section 10B (4) of the Act appointed by the Chief Executive (of the Ministry of Social Development)! This is the first fact that should alert any person who is appealing a decision by a WINZ case manager, and applying to have her/his case heard by such a Board. This is NOT a judicial kind of body that is appointed as independently in the same way as judges and other adjudicators of other hearing panels are.
It is indeed the very Ministry itself (MSD with their department WINZ), that is responsible for the decision that is being challenged (which is to be reviewed), that appoints the Board hearing the case. To make it appear more “independent”, the Ministry employs a so-called “Appeals Coordinator” in each of its administrative regions, who is a staff member of MSD that appoints the 3 panel members from a pool of medical practitioners and other health- or rehabilitation professionals that they have pre-selected for that purpose. Most of the medical practitioners that they may ask to appear on a MAB panel are also “Designated Doctors”*, who they frequently use for examining clients with health conditions, injury and disability, where “second opinions” may be necessary.
* Re “Designated Doctors” read this interesting post: http://accforum.org/forums/index.php?/topic/15463-designated-doctors-%e2%80%93-used-by-work-and-income-some-also-used-by-acc/
Information on the appointment of members to a MAB is presented on page 13 of the ‘Medical Appeals Board - Board Members Information Pack’. We will occasionally and for simplicity refer to it as the “Info Pack”. On that page it clearly states: “The Ministry will identify suitable members to participate on the MAB.” Furthermore the information says: “To assist with the process MAB members are trained and provided with the Medical Appeals Board: Board Members Information Pack, copies of the relevant guides for medical practitioners and the relevant legislation.” Upon reading that, one must ask him-/herself, what criteria will the Ministry use to “identify” a “suitable” member?
2. The Chief Executive’s appointment of the MAB is in conflict with “natural justice”
In view of the above, it appears somewhat peculiar for MSD to start in their ‘Medical Appeals Board: Board Members Information Pack’ (from July 2013) with rather comprehensively explaining the meaning and importance of “natural justice” (see pages 5 and 6, and also pages 32 and 33).
One major principle of natural justice is “nemo iudex in causa sua”, which means “no-one should be a judge in his own cause”, and Wikipedia rightly states: “It is a principle of natural justice that no person can judge a case in which they have an interest.” See this link to the more comprehensive explanation of that legal term: http://en.wikipedia.org/wiki/Nemo_iudex_in_causa_sua
Now MSD may claim, that they are not themselves sitting as a “judge” on the MAB, and technically that is correct, but there are other important factors to consider, proving that they have other mechanisms in place, that ensure the appointments the Chief Executive makes give significant consideration to the interests of MSD. And in view of that, who would dare to claim that MSD have “no interest” in the outcome of the hearing, given the fact they are potentially liable to pay benefits dependent on the outcome?
Uninformed readers of the “Info Pack” may feel more reassured when reading on page 14 under “Impartiality and disqualification”: “A MAB is an independent Board for reviewing appeals and they must act accordingly. They need to take great care to make sure they openly act independently and fairly. A Board member is not on the MAB as a representative of the Ministry.” The “Info Pack” also states: “The role of the MAB is to independently review the Ministry’s decision in accordance with the law. The Board must review the client’s eligibility for benefit on medical grounds, capacity for part-time work, or for capacity to undertake work independently. In addition they should be seen to be impartial.”
That relevant section then lists a range of scenarios to consider, where lack of impartiality may be of concern, but it omits some other very important information.
Also worth to consider is the following comment at the bottom of page 14, under “Member availability”: “Each region has a pool of available MAB members.” And especially this should be noted: “There is no limit to the number of times someone can be a member of the Board.”
Under “Payment” (bottom, page 14) it becomes clear, that MSD themselves pay the Board members, via their ‘National Accounting Centre’.
All the comments about “natural justice” may seem honest and appear to make sense. But what is not mentioned in the ‘MAB Members Information Pack’, nor in the so-called ‘Guide for Designated Doctors’ and in the legislation, is the important role the very influential “Advisors” behind the scenes have in finding, endorsing and preparing medical practitioners and rehabilitation professionals for acting as “Designated Doctors” and MAB panel members.
3. The involvement of “Advisors” and “Coordinators” in finding, selecting and approving “Designated Doctors” and also MAB Members
There is no direct mention in the MAB “Information Pack” about the other key players that MSD employs, who are doing a lot of background-work, liaising and consulting with medical practitioners, especially general practitioners (GPs), yes who even “train” and “mentor” them. These so-called “Advisors” and “Coordinators” are also involved in finding and recommending GPs that MSD wishes to engage as “Designated Doctors” - and also as potential MAB panel members. The “Advisors” are the “Regional Health Advisors” (RHAs) and “Regional Disability Advisors” (RDAs), and the “Coordinators” are the “Health and Disability Coordinators” (HDCs), who are based in each Regional Office of the Ministry. They do actually endorse “candidates” that appear suitable, interested and motivated in working for MSD. They all receive on-going “training”, not just through the formal, official guides, such as the “Information Pack” for MAB members here, or the ‘Guide for Designated Doctors’, they also receive other “guidance” and “mentoring”, directly from “Principal Health Advisor” Dr David Bratt, who has in many of his past “presentations” likened benefit dependence to “drug dependence”. That must raise serious questions about his professional objectivity, or lack thereof. He has a very firm if not extreme view on “work ability”, and he relies heavily on selectively chosen research, mostly from the “Centre for Psychosocial and Disability Research” in Cardiff, Wales, which was once “sponsored” by the UK subsidiary of controversial US health and disability insurance giant UNUM.
Dr Bratt has worked closely with UK Professor Mansel Aylward (head of the mentioned “Centre” in Cardiff), who has very actively been lobbying for a very “relentless” approach using his own interpretation of the so-called “bio-psycho-social model” for diagnosis, assessment and treatment of sickness and various disabling disorders or conditions. He has claimed that many “illnesses” are rather based on “illness belief”, attitude and social factors, and that many “common mental health problems” and other “common health problems” are not such serious conditions, that should stop people from working.
To get an idea of Dr Bratt and his position on “work ability”, it pays to look at some of his bizarre “presentations” that he gave at GP conferences and also for medical professional trainers. The information presented in them is a collection of hand-picked statistical and supposedly also “medical scientific” information, as well as some “quotes” from hand selected “experts”, all meant to prove the great harm caused by “worklessness”, and contrary to that the presumed “health benefits of work”. In past presentations he made frequent comparisons between supposedly “harmful” benefit dependence and “drug dependence”.
Here are links to three examples of these presentations that have been and are available via the internet:
‘Ready, Steady, Crook – Are we killing our patients with kindness?’ (see pages 13, 20 ,21 and 35): http://www.gpcme.co....ratt-Hawker.pdf
‘C1 1515 Bratt-Hawker, 'Ready, Steady, Crook - Are we killing our patients with kindness', present'n, 2010.pdf‘

Number of downloads: 2
‘Medical Certificates are Clinical Instruments Too!’ (see pages 16, 19, 20 and 33):
http://www.gpcme.co....June%202012.pdf
‘Fri_DaVinci_1400_Bratt_Medical Certificates are Clinical Instruments too - June 2012.pdf’

Number of downloads: 3
‘Pressure / No Pressure – Strategies for Pushy Patients’ (see slide 27!):
http://www.google.co...vZo_cQpC2rFyelg
‘D-Bratt.ppt’

Number of downloads: 2
Here are links to PDF files with evidence that MSD have trained Designated Doctors and their “Advisors”, much of this being done by Dr David Bratt as PHA himself:MSD, Des. Dr Training, Comm. Requiremts, J. Russell, M. Mortensen, memo, hi-lit, 23.01.2008.pdf

Number of downloads: 2
MSD, Design. Dr Training Workshop, and H+D Coordntr, info sheet, Rankin, Bratt, 12.08.2008.pdf

Number of downloads: 2
The already mentioned Regional Health and Disability Advisors do “endorse” practitioners who may be prepared to work as “Designated Doctors” and/or serve as MAB Panel members, but it is Dr Bratt, who has usually the last say as to who is accepted as a “designated doctor”. His colleague, Principal Disability Advisor Ann Hawker, is largely very silent, and appears to stay in the background, on all these matters.
As the MAB hearing panel members are often also “Designated Doctors”, and as these doctors do in many hearings represent more than one member of the 3-member panel, it becomes evident, that the so much proclaimed “independence” may get a whole new meaning, once these facts are also considered. It is also the “Health and Disability Coordinator” for the relevant region, who has the last say about who ends up in the pool of MAB hearing panel members. The “Medical Appeals Coordinator” is then simply picking panel members from that maintained pool, and as mentioned in the “Info Pack”, some members can be called upon again and again. So members that may turn out to deliver the outcomes that WINZ and MSD prefer, can in that case simply be picked to do more hearings, potentially serving the very interests of MSD.
See the following links to position descriptions for ‘Regional Health Advisor’, ‘Regional Disability Advisor’, ‘Health and Disability Coordinator’ and ‘Principal Health Advisor’, containing relevant information showing their wider responsibilities: MSD, O.I.A. Request, Reg. Health Advisor, position description, highlighted points, Feb., 2007.pdf

Number of downloads: 2
MSD, O.I.A. Request, Regional Disability Advisor, position description, Feb. 2007.pdf

Number of downloads: 2
MSD, O.I.A. Request, Health + Disab.Coordinator, pos. descrptn, highlighted points, Feb. 2007.pdf

Number of downloads: 1
MSD, O.I.A. Request, Princ. Health Advisor, position description, highlighted points, Jan. 2007.pdf

Number of downloads: 2
See this OIA response from MSD’s then Deputy Chief Executive Debbie Power dated 12 July 2013, revealing the names of the mostly long serving RHAs and RDAs, and what actual qualifications they have. At the end there is also a table showing that MAB appeals from 01 July 2012 to 30 April 2013 led to 74 percent of WINZ decisions being upheld, and only 26 percent being overturned: MSD, O.I.A. Request, DDs, MABs, training, ltr fr. D. Power, C.E., w. MAB table, anon., 12.07.13.pdf

Number of downloads: 3
See the questions put to MSD, by way of an OIA request letter from 11 June 2013: M.S.D., O.I.A., request, anonymous, re DDrs, MABs, PHA, PDA, training, draft, 11.06.13.pdf

Number of downloads: 3
See also a link to a PDF file with the application form for “Designated Doctors”, showing on the last page the boxes to tick and spaces to fill in, where RHAs and RDAs “endorse” them, and where the Principal Health Advisor or Principal Disability Advisor can then “approve” them (under “Office use only”): http://www.workandin...application.pdf
designated-doctor-application, d-loaded 18.03.15.pdf

Number of downloads: 2
Offering further insight into the workings of “Designated Doctors”, the mentioned “Advisors” and how MAB panels are appointed, read this interesting OIA response from former Chief Executive of MSD, Peter Huges, from March 2011:MSD, O.I.A. request, Design. Drs, MAB appeals, RHAs, RDAs, C.E.'s response, March 2011, re anonymous.pdf

Number of downloads: 4
Read especially his answers to questions 14, 15, 16, 17 and 18!!!
The special roles of Principal Health Advisor, Principal Disability Advisor, Regional Health Advisor, Regional Disability Advisor and Health and Disability Coordinator were created and appointed by MSD in 2007 under the last Labour led government. They are roles fulfilling functions that the Chief Executive can delegate according to provisions in the State Sector Act 1988. I refer you to former Chief Executive Peter Hughes’ response to request point 12 on page 3 of his letter from March 2011. The “Advisors” are therefore not “ordinary” staff, but still work for MSD.
At the top of page 5 of that OIA response Peter Hughes also makes clear: “I can advise that it is normal practice for more than one Designated Doctor to sit on the Medical Appeal Board.”
4. Qualifications of MAB hearing members
The MAB “Members Information Pack” lists the kinds of qualifications that panel members are expected to have. A list of designated doctors obtained in August 2012 shows that the vast majority of them are simply general practitioners (GPs). It must be presumed that most members on MABs are also general practitioners.
See this link to a PDF with relevant information: MSD, Designated Doctor List, complete, as in August 2012.pdf

Number of downloads: 2
This is much in line with the figures previously supplied by Peter Hughes in the OIA response received in March 2011 (see again his answer to question 14, on page 4 in the document referred to above). Under the answer to question 18 in that same OIA response Peter Hughes also revealed that of the 10 medical practitioners on the MAB in Auckland 6 were “Designated Doctors”.
See again this link to a PDF document with that info:
MSD, O.I.A. request, Design. Drs, MAB appeals, RHAs, RDAs, C.E.'s response, March 2011, re anonymous.pdf

Number of downloads: 4
Of the other qualifications listed in section 10B of the Act, and in the “Info Pack”, MSD will pick the Members possessing such, who were also consulted with by RHAs, RDAs and HDCs. It can be reasonably presumed, which is confirmed by anecdotal evidence, that only a small number of “Rehabilitation Professionals” will sit on a MAB panel, like for instance specialist nurses, occupational therapists, physiotherapists or psychologists. As for the latter, there has in Peter Hughes’ letter and other information been little or no evidence of psychologists being part of such hearing panels.
There is no information we have on persons with appropriate expertise in vocational training or vocational support for persons with sickness, injury or disability, sitting on MABs, but given recent developments as a result of the major reforms in 2013, there may well be some increased involvement of such professionals in hearing some cases now.
5. MAB Members are guided by the AFOEM’s questionable position statements on the “health benefits of work” (influenced by Mansel Aylward)
The ‘Australasian Faculty of Occupational and Environmental Medicine’ (AFOEM) has since 2010 progressively adopted the new approaches propagated by Professor Aylward and some like-minded “experts” based in the UK, primarily at the ‘Centre for Psychosocial and Disability Research’ (formerly “sponsored” by UNUM Provident) in Cardiff, Wales. The AFOEM has formulated a number of documents on the supposed “health benefits of work”. This was facilitated under the Presidency of former Atos Healthcare employee Dr David Beaumont. As the ‘Royal Australasian College of Physicians’ (RACP) and the AFOEM set the agenda or direction for what new healthcare approaches are promoted and followed in medical science and treatment in New Zealand and Australia, and as even the ‘Royal New Zealand College of General Practitioners’ (RNZCGP) and other organisations have signed up to support the same “position statements”, it must sadly be concluded, that the whole medical profession in both countries is now loyally applying Aylward’s recommended approaches.
The MSD has enthusiastically welcomed this and included a reference to the AFOEM’s position statement on the “health benefits of work” on their ‘Work Capacity Medical Certificate’ that doctors are now expected to complete for WINZ clients. All this appears to be part of a well planned strategy, to gradually reset medical criteria and to reformulate the meaning of sickness and the capacity for work, all done with the sole major aim, to reduce welfare numbers and costs!
See these links to the AFOEM (as part of the RACP) website with info on their “positions statements” and Mansel Aylward’s crucial involvement: http://www.racp.org....mansel-aylward/
http://www.racp.org....FCD1710C0C44EFD
http://www.racp.org....rk/latest-news/
http://www.racp.org....A247F80DC4F363C
http://www.racp.org....298E5D44500162A
http://www.racp.org....0CA75D0CB353BA8