EDITORIAL

Vol. 137 No. 1599 |

DOI: 10.26635/6965.e1599

Review of the Health and Disability Commissioner Act and Code—your chance to have your say

Most healthcare providers have had dealings with the office of the Health and Disability Commissioner (HDC) at some point.

Full article available to subscribers

Most healthcare providers have had dealings with the office of the Health and Disability Commissioner (HDC) at some point. Recent articles in the lay media have drawn attention to the stress in the relationship that exists between the HDC and healthcare providers.1,2 The Code of Health and Disability Services Consumers’ Rights (the Code) and the Health and Disability Commissioner Act3,4 are at present being reviewed as required every 5 years by the Act, and submissions close on 31 July 2024.

The office of the HDC was set up following the enacting of the Health and Disability Commissioner Act in October 1994. The Act established the HDC, with the role of promoting and protecting the rights of health and disability services consumers, and facilitating the fair, simple, speedy and efficient resolution of complaints. The Act was passed to implement the recommendations of Judge Cartwright in her 1988 Report of the Cervical Cancer Inquiry. Judge Cartwright stated that there was a strong need for the establishment of a Commissioner as an independent complaints resolution and educational body, and for a Code of patients’ right.5 The first Commissioner, Robyn Stent, was appointed in December 1994. The Code was made regulation in 1996 and applies to all providers of health and disability services.

Every provider is subject to the duties in the Code. Every provider must take action to inform people of their rights and enable them to exercise their rights. A provider is not in breach of the Code if he/she/it has taken reasonable actions considering the circumstances to give effect to the rights, and comply with the duties, in the Code. However, the onus is on the provider to prove that reasonable actions were taken.

The Code sets out 10 rights:4

  1. The right to be treated with respect.
  2. The right to freedom from discrimination, coercion, harassment and exploitation.
  3. The right to dignity and independence.
  4. The right to services of an appropriate standard.
  5. The right to effective communication.
  6. The right to be fully informed.
  7. The right to make an informed choice and give informed consent.
  8. The right to support.
  9. Rights in respect of teaching or research.
  10. The right to complain.

The complaint mechanisms under the Health and Disability Commissioner Act have become the primary vehicle for dealing with complaints about the quality of health and disability services in New Zealand. Most complaints are dealt with in a timely manner and without the need for a full investigation; the complaints that do require full investigations that can take 3 years and are anything but timely.

The findings, however, of some of the HDC investigations have major impacts on healthcare provision in New Zealand. The 1998 Stent Report,6 which made 112 recommendations and altered the managerial approach to healthcare that had evolved under the free market approach of the time, established the power of the HDC. Subsequent incisive investigations such as the recent report on oncological care in the Southern district, where the HDC found (among other things) that Te Whatu Ora Southern failed to recognise and respond to the clinical risk created by the lack of capacity within the Southern Blood and Cancer Service (SBCS), and that this was due to poor overall clinical governance systems, including inadequacies in quality measures and indicators, and poor relationships between clinicians and executive management have also helped to establish what is expected of healthcare providers.7 The HDC has, over the years, repeatedly stressed issues around informed consent, and its decisions have helped re-model minority rights in healthcare; however, most importantly, it has given patients a voice in healthcare provision.

The volume of work the HDC has to deal with is considerable and increasing rapidly. In the 2022/2023 HDC Annual Report, the commissioners stated that during 2022/2023, the HDC received 3,353 complaints, up 36%. Despite these pressures, the HDC succeeded in closing 6,028 complaints—clearing a lot of backlog.8 With this increasing workload, resourcing has been an issue, especially with the reported NZ$3 million budget cuts.9

Submissions for the review of the Act and Code close on 31 July 2024. The portal for information is on the HDC website; though is hard to find and is part of 10 revolving sections in the right upper part of the HDC website—alternatively, it can be found under the “Your Rights” section of the pull-down menu.10 These areas contain information on how to make a submission.

The portal states “We want to know how you think we can make the Act and the Code better. You will be able to answer questions on five topics:

  • Supporting better and equitable complaint resolution;
  • Making the Act and the Code more effective for, and responsive to the needs of, Māori;
  • Making the Act and the Code work better for tāngata whaikaha | disabled people;
  • Considering options for a right of appeal of HDC decisions; and
  • Minor and technical improvements.”10

The feedback will aid the HDC to make recommendations to the minister of health to improve the Act and the Code. Or, as Machiavelli states in The Prince, “He ought to question them upon everything, and listen to their opinions, and afterwards form his own conclusions.11 These recommendations are due by 20 December 2024, and the minister of health must present a copy of the report to Parliament within 12 working days of receiving it. Publishing recommendations just prior to Christmas is often a way of burying them, and how 12 working days works when the report is realised on 20 December will be interesting.

As healthcare providers, if you want to comment on the HDC Act or Code, now is the opportunity, so either express your opinion or live with the outcome of those who do.

Authors

Frank Frizelle: Editor-in-Chief NZMJ; Professor of Surgery; Department of Surgery, University of Otago Christchurch, New Zealand.

Correspondence

Frank Frizelle: Editor-in-Chief NZMJ; Professor of Surgery; Clinical Director of General Surgery; Department of Surgery, University of Otago Christchurch, New Zealand.

Correspondence email

Frank.Frizelle@cdhb.health.nz

Competing interests

Frank Frizelle is the Editor-in-Chief of the New Zealand Medical Journal.

1)       Wall, T. ‘Guilty from the outset’: Patient rights watchdog under fire. Stuff News [Internet]. 2024 Jun 15 [cited 2024 Jul 15]. Available from: https://www.stuff.co.nz/nz-news/350310033/guilty-outset-patient-rights-watchdog-under-fire

2)       Wall, T. They saved a life, then came the complaint. Stuff News [Internet]. 2024 Jun 13 [cited 2024 Jul 15]. Available from: https://www.stuff.co.nz/nz-news/350303894/they-saved-life-then-came-complaint

3)       Health and Disability Commissioner Act 1994 (NZ).

4)       HDC. Code of Health and Disability Services Consumers’ Rights [Internet]. NZ: Health and Disability Commissioner; 2024 [cited 2024 Jul 15]. Available from: https://www.hdc.org.nz/your-rights/about-the-code/code-of-health-and-disability-services-consumers-rights/

5)       Manatū Hauora – Ministry of Health. The Cartwright Inquiry 1988 [Internet]. NZ: Government Printing Office; 1988 [cited 2024 Jul]. Available from: https://www.health.govt.nz/publication/cartwright-inquiry-1988

6)       HDC. A Report by the Health and Disability Commissioner April 1998 [Internet]. NZ: Health and Disability Commissioner; 1998 [cited 2024 Jul 15]. Available from: https://www.hdc.org.nz/media/e3cdo5hr/canterbury-health-report.pdf

7)       HDC. With addendum – Te Whatu Ora | Health New Zealand Southern (formerly Southern District Health Board) A Report by the Health and Disability Commissioner [Internet]. NZ: Health and Disability Commissioner; 2024 [cited 2024 Jul 15]. Available from: https://www.hdc.org.nz/media/z3sd0ijh/22hdc01310_with_addendum.pdf

8)       HDC. Pūrongo ā-Tau Annual Report 2023 [Internet]. NZ: Health and Disability Commissioner; 2023 [cited 2024 Jul 15]. Available from: https://www.hdc.org.nz/media/wzpdch0g/hdc-annual-report-2023.pdf

9)       Wall, T. ‘Terribly short-sighted’: Govt cuts struggling health watchdog’s budget. Stuff News [Internet]. 2024 Jun 22 [cited 2024 Jul 15]. Available from: https://www.stuff.co.nz/nz-news/350315730/terribly-short-sighted-govt-cuts-struggling-health-watchdogs-budget

10)    HDC. Review of the Act and Code 2024 [Internet]. NZ: Health and Disability Commissioner; 2024 [cited 2024 Jul 15]. Available from: https://www.hdc.org.nz/your-rights/review-of-the-act-and-code-2024/

11)    Machiavelli N. The Prince. New York (US): Vintage Classics; 2009.