A Fortunate Experiment? New Zealand's Experience With A Legislated Code of Patients' Rights. by Peter Skegg

Medical Law Review, 19, Spring 2011, pp. 235266 doi:10.
1093/medlaw/fwr010
A FORTUNATE EXPERIMENT? NEW ZEALANDS EXPERIENCE WITH A LEGISLATED CODE OF PATIENTS RIGHTS
PDG SKEGG
Faculty of Law, University of Otago peter.skegg@otago.ac.nz
I. INTRODUCTION
A Harvard professor has claimed that New Zealand is known around the world for three things: its scenery, its sheep, and its highly progressive health care and medico-legal systems.1 New Zealands medico-legal system has two distinguishing features. One is the treatment injury arm of the statutory no-fault compensation scheme.2 The other is the legislated Code of Patients Rights and the related arrangements for dealing with patient complaints. Were it not for the notorious Unfortunate Experiment at the National Womens Hospital, the New Zealand Code would probably not have been developed. The Unfortunate Experiment was that of a prominent medical academic. Without gaining his patients consent, he withheld standard treatment for patients with cervical carcinoma in situ, in the belief and hoping to prove that it was unnecessary.3 Some patients beneted in consequence, but for others the outcomes were disastrous.4 Responses to disclosures about this experiment led
Downloaded from medlaw.oxfordjournals.org at University of Otago on May 17, 2011
1 2 3 4
In preparing this article, I have beneted from many conversations with current and former members of the Ofce of the Health and Disability Commissioner, some of whom provided helpful comments on successive drafts. Research assistants in the Otago Law Faculty (most recently Calum Barrett and Jan McLeod) kindly trawled through many hundreds of tribunal decisions. Two anonymous reviewers made helpful suggestions. I am most grateful for all of this assistance. I have also beneted from discussions about the Code and related matters with a wide range of community, provider, and student groups. Michelle M Mello, Book Review (2008) 34 Am J Law Med 563, 563. For a helpful account, see Ken Oliphant, Beyond Misadventure: Compensation for Medical Injuries in New Zealand [2007] Med L Rev 357 - 91. For a helpful and accessible account see Charlotte Paul, The New Zealand Cervical Cancer Study: Could it happen again? (1988) 297 Brit Med J 533-9. For a recent assessment see Margaret R.E. McCredie and others, Consequences in Women of Participating in a Study of the Natural History of Cervical Intraepithelial Newplasia 3 (2010) 50 Aust NZ Jl O & G 563-570.
Medical Law Review # The Author [2011]. Published by Oxford University Press; all rights reserved. For Permissions, please email: journals.permissions@oup.com
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to unparalleled changes in New Zealands medical law and ethics. Important amongst them was the statute that provided for a Code of Rights and for a Commissioner to investigate alleged breaches of those rights. This article seeks to explain the development, status, scope, and effects of the New Zealand Code of Rights in the decade and a half since it was made, and to explain and assess its role and that of the Commissioner and related ofcials and tribunals. The article will conclude with some reections on the New Zealand experience.
II. ORIGINS, DEVELOPMENT, AND CONTENT

When news of the Unfortunate Experiment became public5 the Minister of Health quickly appointed Judge Silvia Cartwright as a Committee of Inquiry.6 The Cartwright Inquirys proceedings riveted the nation and its conclusions are still vigorously debated more than two decades later.7 The Cartwright Report contained many recommendations. One was that New Zealand law be amended to provide for a statement of patients rights and the appointment of a Health Commissioner.8 A Health Commissioner Bill was introduced into Parliament in 1990, and eventually enacted as the Health and Disability Commissioner Act 1994 (hereinafter HDC Act or Act). The Cartwright Report had recommended that a statement of patients rights be included in an Act of Parliament, but neither the original Bill nor the eventual Act included that statement of patients rights. Instead the HDC Act provided for a Code of Rights to be made by delegated legislation,9 following a process in which the rst Commissioner would play a pivotal role.10 The Act specied what must, and what could, be included in the Code.11 The Code was, and is, contained in the Schedule to the Health and Disability Commissioner (Code of
5 6
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The crucial article was that by Sandra Coney and Phillida Bunkle, An Unfortunate Experiment at National Womens, Metro June 1987, pp 46-65. The appointment was made on 25 June 1987, in exercise of powers conferred by the Hospitals Act 1957, s 13(3). At the time of her appointment, Dame (as she now is) Silvia Cartwright was a District Court Judge; she later became a High Court Judge and then Governor-General. See eg Linda Bryder, A History of the Unfortunate Experiment at National Womens Hospital (Auckland University Press, 2009) and Joanna Manning ed, The Cartwright Papers (Bridget Williams Books, 2009). See The Report of the Committee of Inquiry into Allegations Concerning the Treatment of Cervical Cancer at National Womens Hospital and into other related matters (hereinafter Cartwright Report), 1988, esp 215-6. HDC Act 1994, s 74. HDC Act 1994, ss 19, 22-23. See also ibid s 21 (Review of Code). HDC Act 1994, s 20.
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Health and Disability Services Consumers Rights) Regulations 1996,12 which came into force on 1 July 1996.13 The heading to clause 1 of the Code Consumers have rights and providers have duties starkly demonstrates the one-sided nature of the Code. Clause 1 states that every consumer has the rights in the Code, and every provider is subject to the duties in the Code and must take action to inform consumers of their rights and enable them to exercise their rights. Clause 2 is much the longest and most important part of the Code. It spells out ten rights of consumers under the Code. Some indication of their content is provided by the list that is displayed on many thousands of posters in New Zealand. (Vastly more consumers, and even providers, will have seen this poster than will ever examine the text of the Code itself.) Prefaced by the heading Your Rights when receiving a Health or Disability Service, it lists: 1 2 3 4 5 6 7 8 9 10 Respect Fair Treatment Dignity and Independence Appropriate Standards Communication Information Choice and Consent Support Teaching and Research Complaints
The text of the ten rights vary greatly in length: for example, rights 2, 3, 8, and 9 comprise only two or three lines of text each, whereas rights 7 and 10 each extend over more than 40 lines of text. Clause 3 of the Code contains the important (but oft-neglected) Provider compliance provision, whereby a provider is not in breach of the Code if the provider has taken reasonable actions in the circumstances to give effect to the rights, and comply with the duties, in the Code. The clause goes on to make it clear that the circumstances here means all the relevant circumstances, including the consumers clinical circumstances and the providers resource constraints. Before proceeding further, it is as well to answer various questions that suggest themselves.
12 13
SR 1996/78. There has only been one relatively minor amendment to the Code: see SR 2004/116. The full text of the Code, and all other legislation mentioned in this article, may be accessed via ,http://www.legislation.govt.nz/default.aspx..
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A. To whom does the Code apply? The Code is of extremely broad application. This is in part a consequence of the denitions of services, provider, and consumer that the Code provides,14 and even more because of the extraordinarily broad, and applicable,15 denitions in the HDC Act.16 The Code applies in both the public and private sectors, to District Health Boards and other corporate providers as well as to individual providers, to professional and to lay providers, to paid and to free services, to orthodox and to unorthodox modalities, and to disability as well as to health services.17 B. Why health and disability, rather than simply health? The original proposal for a Health Commissioner did not envisage the Commissioners role extending to disability services generally and they did not feature in the initial Health Commissioner Bill. However, in the major restructuring that followed a change of Government late in 1990, disability services came to be grouped with health services for many purposes. The main objective was to resolve long-running disputes about responsibility for the provision of such services. Henceforth, disability services were to be funded by way of Vote Health, not Social Welfare. The Health and Disability Services Act 1993 gave effect to this arrangement. In keeping with this development, the Health Commissioner Bill was extended to encompass disability services, providers, and consumers. The provision of new rights for the recipients of disability services was not a major factor in Governments decision about the organisation of such services.18 However, one consequence of this change has been the provision of rights (and, most importantly, a complaints procedure) for the recipients of disability services. It is most unlikely that this would have occurred in the absence of the overarching organisational change. C. Why consumer rather than patient? The Cartwright Reports use of the word patient was unexceptional and uncontroversial. However, in the immediate aftermath of the Report, there was a reaction (in limited but extremely inuential
14 15 16 17 18
Code, clause 4. As to the applicability of the statutory denitions to the Code, see Interpretation Act 1999, s 34. HDC Act 1994, ss 2-3. As to vicarious liability, see HDC Act 1994, s 72. See eg Support for Independence for People with Disabilities: A New Deal. A Government Statement on the Funding and Delivery of Health and Disability Services (1992), 1 2.
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circles) to that term.19 Client or consumer came into widespread use in ofcial documents, despite the fact that they too have their drawbacks. Of the two, consumer is probably the better, as client is particularly inappropriate when someone is being treated involuntarily at someone elses behest and expense. Even if the word patient had appeared in the initial Bill, consumer would probably have had to be substituted for it once it was decided that the Code and Commissioner would extend to disability services. Some recipients of disability services vehemently reject the medicalisation of their condition, to which the word patient might seem to point. In the wider community, and even in hospitals, attempts to suppress or discourage the use of the word patient have largely failed. In part because of this, and in part because the largest category of complaints involve hospitals and general practitioners (where the word patient is especially apt), the second Commissioner took a lead in referring to the Code as a Code of Patients Rights. Its lengthy ofcial title has handicapped understanding and communication: it is too long for constant use.
D. In what sense a code? The term code is used in New Zealand, as elsewhere, for a wide range of legal (and non-legal) instruments. The Code of Rights comes well within the range of this usage. However, it is not a code in the sense of providing a comprehensive and self-contained statement of the law, which does not require recourse to other legal sources. Many of the key terms used in the Code (such as services, provider, and consumer) can only be fully understood in the light of denitions provided in the HDC Act.20 And the Code relies on the general law relating to capacity to consent ( part statutory, part common law),21 and sometimes makes express reference to the common law.22 E. In what sense rights? Only a tiny proportion of aggrieved consumers can in practice obtain damages, or any other legal remedy, in consequence of even an admitted breach of the Code. Nor is there any criminal liability for breach of the
19
20 21 22
This is exemplied by the Health Commissioner Bill 1990 eschewing the word patient and using the term consumer throughout. But see also eg New Zealand Health Council Working Party on Informed Consent, Informed Consent A Discussion Paper and Draft Standard for Patient Care Services (June 1989) (using client rather than patient throughout) and the Department of Health Working Party on Informed Consent, Principles & Guidelines for Informed Choice & Consent (May 1991) (using the term user rather than patient throughout). See especially HDC Act 1994, ss 2-3. See Code, cl 2, rt 7(2),(3); cl 4 (denition of consumer). Code cl 2, rt 7(1),(5).
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Code (although conduct that breaches the Code may very occasionally amount to a crime). However, the Code in conjunction with other relevant legislation provides complainants with various legal entitlements and most importantly a statutory complaints process that they did not have previously.
F. Rights, Ancient and Modern? One of the most frequently invoked provisions of the Code23 reects the long-established principle, by virtue of which there is a right to have services provided with reasonable care and skill. Another much-used provision24 reects a principle that was already becoming established in New Zealand, quite apart from the Code: the patients right to the information that a reasonable patient, in that patients circumstances, would require or expect.25 But the Code was innovative in various respects, not least in its express provision of a right to be treated with respect26 and a right to have services provided in a manner that respects the dignity of the individual.27 There are aspects of all ten rights in clause 2 of the Code that go beyond what was previously provided, either by the common law or by statute. The right to have services provided with reasonable care and skill is supplemented in the Code by right 4(2), which provides a (legal) right to have services provided that comply with legal, professional, ethical, and other relevant standards.28 Law and ethics had long intermingled in a professional disciplinary context, but by right 4(2) the Code expressly converts ethical standards into relevant legal ones. The law relating to the recipients of disability services had received much less attention, and was much less developed, than that relating to patients. Even the drafter of the Act did not envisage the informed consent provisions of the Code extending to disability services.29 However, the Act was drafted in a way that did not preclude this being done,30 as for the most part it was.31 Hence, in terms of additional rights, the Code provides (even) more new rights for the users of disability services than it does for the users of health services.
23 24 25
26 27 28 29 30 31
Code, cl 2, rt 4(1). Code, cl 2, rt 6(1) and (2). See the invocation of the leading Australian case of Rogers v Whitaker (1992) 175 CLR 479 (HCA) in e.g., EH v ACC 14/10/94, ACC Appeal Authority, Decision No 191/95; ACA17/94; and in B v Medical Council of NZ 8/7/ 96, H.C. Auckland HC11/96, Note [2005] 3 NZLR 810. Code, cl 2, rt 1(1). Code, cl 2, rt 3. Emphasis added. See HDC Act, s 2 (denition of informed consent) and s 20(1)(a). HDC Act 1994, s 20(2)(a). Code, cl 2 rt 7(1); cf rt 7(6).
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The requirement that providers have a complaints procedure that complies with the stringent obligations specied in the Code, and deal appropriately with any complaint received by them,32 was a particularly signicant new right provided by the Code.
G. What is missing? Express provisions relating to information privacy and condentiality are a notable omission from the Code. Initially it was envisaged that the Code would deal with such issues.33 However, after the introduction of Health Commissioner Bill, there were major developments in New Zealands information privacy law. The Privacy Act 1993 set out various Information Privacy Principles34 and authorised the Privacy Commissioner to issue codes of practice varying these principles in particular contexts.35 A detailed Health Information Privacy Code (HIPC) soon followed.36 The statutory requirement that the Code of Rights include provisions relating to privacy was eventually expressed in a way that excluded matters within the purview of the Privacy Commissioner and the HIPC.37 Infringements of the HIPC, or related legislation or ethical principles, can be viewed as a breach of the (above-mentioned) right to have services provided that comply with legal, professional, ethical, and other relevant standards.38 However, in practice the Health and Disability Commissioner forwards complaints about such matters to the Privacy Commissioner.39 The Government that came into power soon after the introduction of Health Commissioner Bill was attracted by the notion of a list of core services, to which everyone should have access, on affordable terms and without unreasonable delay.40 It raised the possibility of a list of core health services being specied in general legislation, and said that that the Ofce of the Health Commissioner might be a suitable place to locate responsibility for enforcement of the core.41 The core services project did not proceed as originally envisaged.42 In consequence, the
32 33 34 35 36 37 38 39
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Code, cl 2, rt 10. See Health Commissioner Bill 1990, cl 17(3)(c)(i). Privacy Act 1993, s 6. Privacy Act 1993, s 46. The latest version of the HIPC can be downloaded from ,http://privacy.org. nz/health-information-privacy-code/.. HDC Act 1994, s 20(1)(c)(i). Code, cl 2, rt 4(2). See A Review of the Health and Disability Commissioner Act 1994 and Code of Health and Disability Services Consumers Rights: Report to the Minister of Health/ June 2009 (Health and Disability Commissioner, 2009), p 13. Your Health and the Public Health: A Statement of Government Health Policy (Ministry of Health, 1991), p 59. Ibid, p 86. See Health and Disability Services Act 1993, s 6.
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Health and Disability Commissioner was not charged with this responsibility. This is just as well. Had an agreed list of core services eventuated, this task would probably have dwarfed the Commissioners other responsibilities. There are many circumstances where a failure to provide appropriate and available treatment, or a referral, would be in breach of the Code.43 However, the Code provides no guaranteed right of access to treatment that is not already available. Sometimes expressly,44 sometimes by implication,45 the Code of Rights recognises the reality of resource constraints.46
III. LOW-LEVEL RESOLUTION

The Code, and the related legislation, has resulted in well-publicised means whereby a great many matters can be resolved within weeks (or at most months) without complaint to the Commissioner. Right 10 of the Code commences by providing that every consumer has the right to complain about a provider in any form appropriate to that consumer. Under right 10 a complaint may be made to a provider, to anyone authorised to receive complaints about that provider, or to any other appropriate person. The latter category expressly includes both an independent advocate provided under the HDC Act and also the Commissioner. Right 10 goes on to provide that every provider must facilitate the fair, simple, speedy, and efcient resolution of complaints, and spells out in some detail the complaints procedures that are required and the time lines within which they must operate. Right 10 also requires a provider to inform a complainant of the availability of the independent advocates and the Commissioner. This increases the likelihood of providers responding appropriately to complaints received. The vast majority of complaints are dealt with at this low level. Providers do not make a habit of rejecting complaints on jurisdictional grounds. In practice, therefore, right 10 of the Code assists in resolving matters that are beyond, as well as within, the ambit of the
43
44 45 46
A failure to provide a health or disability service by reason of a prohibited ground of discrimination (such as sex, race, or employment status) is generally unlawful, both under the Human Rights Act 1993 and in terms of right 2 of the Code. Complaints that deal solely with such matters are in practice forwarded to the Chief Human Rights Commissioner. Code, cl 3(3). Code, cl 2, rt 5(1). Whether Commissioners have adequately taken account of these constraints remains a matter of debate. In practice, there is no entirely satisfactory solution: whatever approach is adopted, it will be open to legitimate objections.
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Code. If an adequate explanation can be provided, or resolution reached, it usually will be. Like the Code and the Commissioner, the Health and Disability Consumer Advocacy Service originated from a recommendation in the Cartwright Report.47 The Director of Advocacy is appointed by the Commissioner, but is under a statutory obligation to act independently.48 The arrangements have changed over the years: nowadays advocates are employed in 25 community-based ofces around the country. The advocates are neither investigators nor mediators, but their roles include assisting aggrieved consumers to resolve complaints by agreement.49 They assist consumers with some thousands of complaints each year,50 the overwhelming majority of which are resolved without being referred to the Commissioner.51
IV. COMPLAINTS TO THE COMMISSIONER52

Complaints reach the Commissioners ofce from a variety of sources: consumers, people entitled to consent on behalf of consumers, advocates, and anyone else (including, on occasion, whistleblower providers).53 In addition, the Medical Council and other registration authorities are now required to forward to the Commissioner any complaint received by them alleging that the practice or conduct of a health
47
48 49 50
51
52
53
See Cartwright Report 173-175, 213-214 ( provision of a patient advocate at National Womens Hospital). This recommendation led on to the broader proposals in MJ Brucker and JJ Nuthall, Patient Advocates and a Health Commissioner for New Zealand: A Discussion Paper (August 1988) and then the Report of the Working Party on the Establishment of the Health Commissioner(s) (March 1989). See now HDC Act 1994, Part 3. HDC Act 1994, s 24(2), and see also s 26. HDC Act 1994, s 30(1)(h). Each year the Advocacy Services has typically managed at least four times as many complaints as were received by the Commissioner: never less than 4000; rarely more than 7000. (Details are provided in the Annual Reports: see n 52, below.) If the complaint has been made to the advocate (as envisaged by both right 10 and the Act), and the advocate is unable to resolve it, the advocate is required to refer the complaint to the Commissioner: see HDC Act 1994, s 31(3)(a). Part IV of this article provides an account of the law and practice in the rst quarter of 2010 (during the nal stages of Ron Patersons decade as Commissioner and long after the coming into force of the signicant Health and Disability Commissioner Amendment Act 2003). My understanding of the processes was advanced by a series of interviews conducted early in 2010 with the then Commissioner, the two Deputy Commissioners, the Commissioners Chief Legal Advisor, and the Director of Proceedings. I am most grateful to them for their assistance. This account also draws on the wealth of information available at the HDC website: ,http://www.hdc.org.nz/.. (The Annual Reports, accessible there, are the source of many of the gures provided here.) For the legal basis, see HDC Act 1994, s 31 (Any person may complain . . ..)
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practitioner has affected a health consumer.54 The authoritys own processes are then put on hold while the Commissioner deals with the matter.
A. Preliminary assessments On average during the past decade, a thousand or more within jurisdiction complaints have been received by the Commissioner each year55 some initially orally, some on the internet (where a complaints form is provided), and others in more conventional written form.56 It is clearly beyond the capacity of the Commissioner, even in conjunction with two Deputy Commissioners,57 to explore all aspects of these complaints. Initial enquiries are therefore made by staff members acting on the Commissioners behalf, exercising powers delegated by the Commissioner.58 The initial handling of a complaint is overseen by a Complaints Assessment Manager, who is assisted by assessors who are part of the Complaints Assessment Team. Typically, a response is sought from the provider whose conduct is the subject of the complaint, and the providers clinical notes are accessed. The providers response is often relayed to the complainant for comment, and the Complaints Assessment Team then decides what course of action is appropriate. It can call upon the advice of the in-house medical advisor when required. In the work of the team, as in that of the crucial decision-making by the Commissioner that may follow, section 6 of the Act provides the lodestar. It provides:59
The purpose of this Act is to promote and protect the rights of health consumers and disability services consumers, and, to that
54 55 56
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Health Practitioners Competence Assurance Act 2003, s 64. The highest number of complaints was in the 2009-10 year, when 1,573 complaints were received by the Ofce of the HDC. See also n 69, below. A great many enquiries do not lead to the laying of a complaint, and about a tenth of those listed as complaints relate to matters that are not within the Commissioners jurisdiction. The original s 9 of HDC Act 1994 provided for the appointment of a Deputy Commissioner. This provision was replaced, rst by the HDC Amendment Act 2003 s 6 and then by the HDC Amendment Act 2007 s 6 (both substituting a new s 9, and both providing for the appointment of more than one Deputy Commissioner). Amongst other things, both Deputy Commissioners exercise powers delegated by the Commissioner to investigate complaints about specic categories of providers. For the sake of simplicity, text of this article refers to the Commissioner alone. (Commissioner Paterson dealt with all complaints about medical practitioners, other than those relating to the provision of community aged care services.) For the extent of the Commissioners power to delegate, see HDC Act 1994, ss 68-71 and the Crown Entities Act 2004. Emphasis added. See, similarly, the Long Title of the Act, which also makes reference to securing the fair, simple, speedy, and efcient resolution of complaints.
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end, to facilitate the fair, simple, speedy, and efcient resolution of complaints relating to infringements of those rights. A preliminary assessment of a complaint is made at an early stage.60 Sometimes there will be a decision to take no action: a decision that can be made at any time after completing a preliminary assessment, if the Commissioner considers that action, or further action, is unnecessary or inappropriate.61 In most cases, the preliminary assessment will be followed by some action. The legislation provides for several possibilities.62 One is for the complaint to be referred to an advocate,63 who can assist the consumer in attempting to resolve the complaint by agreement with the provider. Alternatively, where the complaint does not raise questions about the health and safety of members of the public, it can be referred to the provider, in the hope of its being appropriately resolved.64 The outcome must be reported to the Commissioner,65 who can then decide whether to pursue some other course. Where it appears that the competence of a health practitioner, or the practitioners tness to practice, may be in doubt, the complaint may be referred to the appropriate authority so the authority can consider whether a competence review is appropriate.66 In circumstances specied in the legislation, complaints can also be referred to the Accident Compensation Corporation, the Director-General of Health, the Chief Human Rights Commissioner, the Chief Ombudsman, or the Privacy Commissioner.67 By no means all suspected or probable breaches of the Code proceed to formal investigation. In many cases, the matter can be resolved, or an appropriate response provided, without a formal investigation. However, the most serious complaints will proceed to a formal investigation. In addition, the Commissioner has the power to commence an own initiative investigation whenever the action of a provider appears to the Commissioner to be in breach of the Code.68 This power is used sparingly, but on occasion very effectively.
60 61 62 63 64 65 66 67 68
See HDC Act 1994, s 33. HDC Act 1994, s 38. See HDC Act 1994, ss 33-39. HDC Act 1994, s 37. HDC Act 1994, s 34(1)(d). HDC Act 1994, s 35(c). HDC Act 1994, s 34(1)(a), but note also s 34(5). HDC Act 1994, s 34(1)(b)-(c); and see also s 39. HDC Act 1994, s 40(3).
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B. Formal investigations The proportion of (within-jurisdiction) complaints that have led on to a formal investigation declined markedly after the HDC Amendment Act 2003 came into force, and continues to decline.69 As with the initial assessment of complaints, members of the Commissioners staff play an important role in the formal investigations. The Commissioner oversees the investigation, and makes key decisions, but the information is gathered by others on the Commissioners behalf. In most cases, a practitioner from the same eld as the provider under investigation is asked to provide an expert opinion on the providers conduct in the light of the Code. The Act sets out various procedural requirements,70 but leaves many matters to the discretion of the Commissioner. Thus the rst Commissioner did not inform providers of the names of the experts on whose advice she relied, or explain why they were chosen. In contrast, the second Commissioner obtained the agreement of practitioner groups to nominate colleagues with appropriate expertise, who were prepared to be identied in connection with the expert opinion they provided.71 Once a provisional opinion has been drafted, all aspects of it are reviewed by members of the Commissioners legal team. They work through a long checklist reviewing every aspect of the opinion, not simply those involving the law. The provisional opinion is then sent both to the complainant and to the provider or providers, with an invitation to respond. If the provisional opinion is a breach rather than a no breach one, providers will often obtain their own expert opinion, contradicting or qualifying the advice on which the Commissioner relied. These comments are eventually provided to the Commissioners expert, who will provide a response (occasionally retreating from the earlier viewpoint, but more commonly reafrming it or simply modifying the terms in which it is expressed). It is then for the Commissioner to reach and express a nal opinion, in the light of all the evidence and submissions. Whatever the nal outcome, all relevant portions of the providers response to the provisional opinion are included in the nal opinion.72
69
70 71 72
In the four years ending in mid-2004, there were on average 1,034 (within jurisdiction) complaints received by the Commissioner each year, of which an average of 252 proceeded to a formal investigation. In the four years ending in mid-2010 an average of 1246 (within jurisdiction) complaints were received each year, but formal investigations reduced to an annual average of 88. HDC Act 1994, ss 40-44. See Ron Paterson, Naming Advisors: Pros and Cons New Zealand GP, 30 May 2001, p10. This often goes beyond the obligation imposed by the HDC Act 1994, s 67.
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There is a (usually unacknowledged) tension between the Acts objective of fairness in complaints resolution and its related objectives of simplicity, speed, and efciency. Some compromise between these admirable objectives is necessary, and often apparent. In some respects, Commissioner investigations are less fair than judicial proceedings. People whose conduct is being investigated hardly ever have the opportunity to put their case in person to the Commissioner,73 who will usually rely on evidence gathered by others. There is no right to crossexamine witnesses, and damning conclusions will sometimes be reached on the papers. It would be very surprising indeed if a Commissioners opinions would always have been the same, if complainants and providers had had the opportunity to present their case in the way that is commonplace before courts and tribunals.74 The nal opinion reads like the judgment of a court, with a full and careful account of both the facts and law. The Commissioner (or Deputy Commissioner, for investigations delegated to a Deputy Commissioner) reads and takes full responsibility for both the provisional and nal opinions, even though in practice much of them (including discussion of the Code) will have been drafted by others. The Commissioner will commonly edit or alter a draft prepared by others, but will hardly ever set aside an entire draft and start again from scratch.75 If, at the conclusion of an investigation, the Commissioner is of the opinion that there was a breach of the Code, the Commissioner has only a few courses of action available. The Act provides that the Commissioner can report the Commissioners opinion, with reasons, to various people and authorities76; can make recommendations77; can
73 74
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76 77
But see HDC Act 1994, ss 59, 67. However, the Act provides one safeguard that is not available to parties, or to witnesses, in civil or criminal proceedings: the Commissioner is not permitted to make adverse comments about someone without providing that person with an opportunity to be heard and to make a written statement in answer to the adverse comment (HDC Act 1994, s67(a)). Where that person so requires, that written statement (or a fair and accurate summary of it) must accompany the Commissioners report (HDC Act 1994, s 67(b)). The information in the last two sentences of the above paragraph (like a good deal in the rest of Part IV) was provided to me by the then Commissioner, Ron Paterson, during the course of an interview on 11 February 2010. (My source for those two sentences is provided here at the request of a reviewer.) Quite apart from Commissioner Patersons disclosure, examination of the full range and bulk of his (and even more, his predecessors) Opinions would quickly lead an observer to the realization that no one individual could have completed these tasks alone, even if without the Commissioners many other responsibilities. HDC Act 1994, s 45(2)(a),(b),(c). HDC Act 1994, ss 45(2)(a). By virtue of s 46(1) the Commissioner may (and in practice does) request the person to whom a recommendation is made to notify the Commissioner of the steps that person proposes to take to give
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make a complaint (or assist someone else to do so)78; and can refer the provider to the Director of Proceedings, so the Director can decide whether to institute legal proceedings.79
C. The Director of Proceedings Like the Director of Advocacy, the Director of Proceedings is appointed and employed by the Commissioner.80 However, again like the Director of Advocacy, the Act provides that in exercising the Directors powers, duties, and functions, the Director is to act independently.81 The Director is not responsible to the Commissioner, except for the efcient, effective, and economic management of the Directors activities.82 The Director of Proceedings is empowered to act when, following a breach opinion, the Commissioner refers a provider83 to the Director; so the Director can decide whether some action should be taken.84 One possibility is the bringing of civil proceedings before the Human Rights Review Tribunal.85 Another, in the case of registered health practitioners, is the institution of disciplinary proceedings before the Health Practitioners Disciplinary Tribunal.86 When a matter is referred to the Director, the Director and the Directors staff review the entire le, not simply the Commissioners opinion. In most years during the past decade, the resources available to the Director would not have sufced had the Director instituted proceedings against all providers referred by the Commissioner. The Director has to weigh a range of considerations before deciding which cases to pursue further. The wishes of the aggrieved party are relevant, but so too is
effect to the recommendation. If adequate action does not ensue, s 46(2) authorises the Commissioner to report the matter to the Minister. In practice, the overwhelming majority of recommendations are acted upon. HDC Act 1994, s 45(2)(d),(e). HDC Act 1994, s 45(2)(f ); see also ss 45(3). For what the Commissioner must now do, before referring a provider to the Director, see s 44. HDC Act 1994, s 15(1). HDC Act 1994, s 15(2). HDC Act 1994, s 15(3). Cf HDC Act 1994, s 45(f ), as it was prior to the HDC Amendment Act 2003: to refer the matter, rather than (as now) refer 1 or more . . . providers. HDC Act 1994, s 45(2)(f ). HDC Act 1994, ss 45(2)(f )(ii), 49; Health Practitioners Competence Assurance Act 2003, s 91. (On the meaning of disciplinary proceedings in the HDC Act 1994, see ibid s 2) HDC Act 1994, ss 45(2)(f )(iii), 49; Health Practitioners Competence Assurance Act 2003, s 91. The HDC Act 1994, s 47, provides the Director with a few other options. However, they do not require consideration here as they are hardly ever exercised. The one situation in which the current Director has availed himself of these possibilities was in an inquest early in 2010, when he sought (unsuccessfully) to persuade the coroner to make a recommendation about the recording of laparoscopic surgery.
78 79 80 81 82 83 84 85
86
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the public interest in (for example) exposing or disciplining a practitioner whose conduct is putting others at risk.
V. CIVIL PROCEEDINGS FOR BREACH OF THE CODE

The HDC Act created a new form of civil liability: that for breach of the Code.87 Claims are heard before the Human Rights Review Tribunal (HRRT),88 rather than the ordinary courts. The tribunal has a legally-qualied Chairperson,89 who sits with two other members drawn from a panel of (mainly lay) persons maintained for that purpose.90 Consistent with the HDC Acts emphasis on low-level resolution, there is no direct access to the tribunal to seek damages, or any other remedy, for breach of the Code of Rights. The Commissioner is in effect the gatekeeper for the HRRT, in respect of proceedings for breach of the Code.91 Unless the Commissioner has completed an investigation, and expressed the opinion that there was a breach of the Code in respect of the particular matter, it is not possible to commence civil proceedings for breach of the Code in respect of that matter.92 Following a breach opinion, it is greatly to an aggrieved consumers advantage if the Commissioner refers the provider to the Director of Proceedings93 and the Director then decides to institute proceedings before the HRRT.94 The litigation (or negotiations for a nancial settlement) then proceed without cost (or risk of costs) to the consumer, but damages recovered by the Director are paid to the person on whose behalf proceedings were brought.95 In practice, all of the proceedings involving the Code that have resulted in a substantive hearing before the HRRT about whether there has been a breach of the Code, or a
87 88
89 90 91
92 93 94 95
HDC Act 1994, s 50(2). On the HRRT, see generally Human Rights Act 1993, Part 4. The HRRT deals with cases arising under the Human Rights Act 1993, the Privacy Act 1993, and the HDC Act. Until 2002 it was known as the Complaints Review Tribunal (CRT). See generally Theo Baker, The Human Rights Review Tribunal and the Rights of Health and Disability Consumers in New Zealand (2008) 16 J Law & Med 85-102. Human Rights Act 1993, ss 98-110. Human Rights Act 1993, ss 98(a), 101. For gatekeeper terminology, see Perfect v Bay of Plenty DHB [2004] N.Z.H.R.R.T. 3 at [40]-[44]; Sexton v Vodone [2009] N.Z.H.R.R.T. 6 at [13]. See Perfect v Bay of Plenty DHB [2004] N.Z.H.R.R.T. 3. Compare with the Privacy Act 1993, s 82 (esp s82(1)(a)) and s 83. See HDC Act 1994, s 45(2)(f ). See HDC Act 1994, s 50. See HDC Act 1994, s 57(2).
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nal order from the HRRT indicating that there has (or has not) been a breach, have been instituted by the Director.96 In the nearly fteen years since this jurisdiction came into being, proceedings brought on behalf of thirty-one consumers have resulted in a nal order about breach of the Code.97 In some of these cases98 there was a contested hearing, but in many an order (involving a declaration) was made by consent.99
96
97
98 99
Perfect v Bay of Plenty DHB [2004] N.Z.H.R.R.T. 3 was instituted by Mr and Mrs Perfect as representatives of their son, but the HRRT held it had no jurisdiction to hear the case in the absence of a breach opinion from the Commissioner. In all of these cases the plaintiff was the Director of Proceedings. To save space in the footnotes that follow, the cases are here numbered (in order of the date of the tribunals decision), showing the name or initial of the defendant. With the two decisions that are not available for downloading from ,http://www.nzlii.org/nz/cases/NZHRRT/., the tribunal reference and decision numbers are provided. On those occasions where the proceedings and eventual decision related to more than one consumer (see next footnote), they are listed separately. Case 1: N CRT 13/98, Dec No. 15/98, 16 September 1998, sub nom ONeil [2001] N.Z.A.R. 59 (HC); Case 2: O CTR 27/98, Dec No. 13/99, 21 May 1999, 5 H.R.N.Z. 625; Case 3: Stace [2002] N.Z.H.R.R.T. 7; Case 4: A (Huang) [2003] N.Z.H.R.R.T. 35; Case 5: Jeffrey & Peteleigh Holdings Limited [2004] N.Z.H.R.R.T. 40; Case 6: Matthews [2004] N.Z.H.R.R.T. 9; Case 7: SLD [2004] N.Z.H.R.R.T. 19; Case 8: DG (Fan) [Complainant A] [2005] N.Z.H.R.R.T. 2; Case 9: DG (Fan) [Complainant B] [2005] N.Z.H.R.R.T. 2; Case 10: Leighton [2006] N.Z.H.R.R.T. 28; Case 11: Peters [2006] N.Z.H.R.R.T. 36; Case 12: Isaac HRRT 24/06, Dec No. 10/07, 14 June 2007; Case 13: Sisson & Others [2007] N.Z.H.R.R.T. 11; Case 14: Kaur [2007] N.Z.H.R.R.T. 12; Case 15: Van Bakel [2007] N.Z.H.R.R.T. 15; Case 16: Rawiri [2007] N.Z.H.R.R.T. 25; Case 17: Mogridge [Complainant A] [2007] N.Z.H.R.R.T. 27; Case 18 Mogridge [Complainant B] [2007] N.Z.H.R.R.T. 27; Case 19: Mogridge [Complainant C] [2007] N.Z.H.R. R.T. 27; Case 20: Wilson [2008] N.Z.H.R.R.T. 1; Case 21: TMC [2008] N.Z.H.R.R.T. 6; Case 22: Clarin [2009] N.Z.H. R.R.T. 1; Case 23: OMalley [2009] N.Z.H.R.R.T. 2; Case 24: Douglas [Complainant A] [2010] N.Z.H.R.R.T. 4; Case 25: Douglas [Complainant B] [2010] N.Z.H.R.R.T. 4; Case 26: Paripurnananda [Complainant A] [2010] N.Z.H.R.R.T. 5; Case 27: Paripurnananda [Complainant B] [2010] N.Z.H.R.R.T. 5; Case 28: Mistry [Complainant A] [2010] N.Z.H.R.R.T. 19; Case 29: Mistry [Complainant B] [2010] N.Z.H.R.R.T. 19; Case 30: Mistry [Complainant C] [2010] N.Z.H.R.R.T. 19; Case 31: Nikau [2010] NZHRRT 26. (Many other CRT/HRRT decisions have been examined for the purpose of this study, but are not cited here as they involved interlocutory matters, or costs, name suppression etc.) Throughout this discussion of civil liability for breach of the Code, case is used to refer to the proceedings in respect of each individual consumer. There was a contested hearing in cases 1, 4, 8 - 9, 11, 14 - 15, and 17 - 20. An order was made with consent in cases 3, 5 - 7, 10, 12 - 13, 16, 21 - 22, and 24 - 30. In case 2 the defendant accepted that there had been a breach of the Code; the decision focused on remedies. In cases 23 and 31 evidence of breach was heard and accepted in the absence of the defendant, who chose not to attend.
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In 24 of the 31 cases, the defendant was a caregiver, therapist, or other provider who, not being a registered health practitioner, was not subject to the jurisdiction of a statutory disciplinary tribunal.100 In the other cases the defendant was a registered practitioner, so was also subject to disciplinary proceedings.101 Civil rather than disciplinary proceedings are required if a consumer is to receive damages for breach of the Code, or if one of the other statutory remedies is to be granted.102 The availability of damages is affected by the statutory bar, whereby a plaintiff cannot seek, nor the tribunal award, compensatory damages for personal injury that comes within New Zealands statutory compensation scheme.103 Negligent treatment breaches right 4(1) of the Code, but if physical injury results, a claim for compensatory damages for breach of the Code (as at common law) is precluded by the statutory bar. All eleven awards of compensatory damages have been for humiliation, loss of dignity, or injury to feelings of the aggrieved person.104 In addition, in eight of these cases, punitive damages were also awarded, on the ground that the defendant had acted in agrant disregard of the rights of the aggrieved person.105 In six of the thirty-one cases a restraining order was made.106 A remarkable proportion of the cases share a common characteristic. In 13 of the 31 cases sexual intercourse, or inappropriate touching of breasts or genitals, was a factor in the eventual declaration that the Code was breached.107 In the 26 of the 31 cases, the HRRT declared there was a breach of right 4 (broadly, the right to appropriate treatment).108 Six cases involved failures to inform and to obtain informed consent.109
100 101 102 103
104 105
106 107
108
109
See cases 3 - 4, 7 - 12, 14 -19, and 22 - 31. See cases 1 - 2, 5 - 6, 13, and 20 - 21. Cf Sentencing Act 2002, ss 32-38 (reparation). As to the other remedies, see HDC Act 1994, s 54(1). HDC Act 1994, s 52(3). See similarly the Accident Compensation Act 2001 (until 3 March 2010 entitled the Injury Prevention, Rehabilitation, and Compensation Act 2001), s 317. HDC Act 1994, ss 54(1)(a), 57(1)(c). The cases were 2, 4, 7, 9, 11 - 12, 17 19, 23, and 31. See HDC Act 1994, s 54(1)(a) (referred to as punitive damages in s 52(2)); note also ibid, s 54(5). Such damages were awarded in cases 9, 11 - 12, 17 19, 23, and 31. Cases 3, 7, 10, and 17 - 19. See cases 1, 3, 7, 9 - 12, 17, 19, and 24 - 27. (Case 23 also involved sexual exploitation, but did not involve sexual intercourse with or inappropriate touching of the consumer). Right 4(2) featured in a great many cases: see cases 1 - 4, 6 - 7, 9, 11, 13 - 20, 22, 24 - 27, and 31. Other cases involving right 4 were numbers 5, 10, 21, and 23. Rights 6 and 7(1) were held breached in cases 4, 9, and 24 - 27.
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On occasion other rights in the Code have also been declared breached.110 When it comes to proceedings before the HRRT, a Commissioner opinion that there was a breach of the Code does not create a presumption that there was a breach. The HRRT determines the matter for itself, sometimes with the benet of evidence or submissions that would not have been available to the Commissioner.111 The HRRT has not cited, much less given any weight to, a Commissioner opinion that there was a breach of the Code except once, to determine that it had jurisdiction to deal with the matter in the rst place.112 Other opinions of the Commissioner about the interpretation of the Code have not been cited in any decision of the HRRT. Since August 2004, consumers113 have been free to institute proceedings in most cases where, following an investigation, a Commissioner has expressed the opinion that the Code has been breached.114 Previously this only became a possibility in some cases in which the Commissioner had referred the matter to the Director of Proceedings.115 However, as fewer complaints now proceed to a formal investigation and then a breach opinion,116 the number of consumers who are free to institute proceedings before the HRRT has not increased as much as might have been expected. Hardly any of the hundreds who have been free to institute civil proceedings over the years have in fact done so, or have persisted with proceedings once commenced. This may reect the disincentive of having to fund such proceedings, and also the emotional and physical demands that proceedings could impose
110
111
112 113
114 115 116
Other rights breached were right 1(1) (case 23); right 1(2) (cases 4, 8 - 9, and 26 - 27); right 2 (cases 1, 3, 11, 12, 17, 19, 23, and 28 - 31); right 3 (case 23); and right 5 (cases 9 and 21). There is no case in which the HRRT has reached an entirely different conclusion from the Commissioner, but in cases 4, 8 - 9, 20 and 23 the Directors claims were not upheld in all respects. Perfect v Bay of Plenty DHB [2004] N.Z.H.R.R.T. 3. The HDC Act 1994, s52(1), is expressed in terms of person aggrieved rather than consumer but in Marks v Director of Proceedings [2009] N.Z.C.A. 151; [2009] 3 N.Z.L.R. 108 the Court of Appeal held that only consumers with rights under the Code can be aggrieved persons for the purposes of the Act. (On one issue left open by the Court of Appeal, see now Pilai v Iyengar [2011] N.Z.H.R.R.T. 3.) HDC Act 1994, s 51, as it has been since its amendment by the HDC Amendment Act 2003, s 15. See HDC Act 1994, s51, as it was prior to its amendment by the HDC Amendment Act 2003, s 15. The number of breach opinions was highest in the year ending 30 June 2000 (227, of which 21 were referred to the Director of Proceedings) and lowest in the year ending 30 June 2010 (36, which resulted in 5 referrals to the Director).
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on ill or otherwise disabled parties.117 This underlines the value of the Director being able to take action on the consumers behalf, without nancial outlay or risk to the consumer. Even if which seems doubtful there have been as many settlements as there have been concluded cases before the HRRT, it is apparent that only a tiny proportion of consumers have beneted from the new form of civil liability created by the HDC Act. In particular, no medical practitioners have been required by the HRRT to pay damages for breach of the Code of Rights.118
VI. DISCIPLINARY PROCEEDINGS AND THE CODE

In the majority of cases in which the Director of Proceedings has instituted proceedings, they have been before a disciplinary tribunal rather than the HRRT. When the HDC Act and the Code rst came into force, there were different disciplinary tribunals for different health professions. Furthermore, the grounds for discipline varied somewhat from one health profession to another.119 The Health Practitioners Competence Assurance Act 2003 (HPCA Act) changed all this. There is now a single disciplinary tribunal the Health Practitioners Disciplinary Tribunal (HPDT) for 12 different health professions.120 The HPDT sits with a lawyer
117
118
119 120
Litigation is rarely embarked upon lightly, even by those who are not poor, unwell, or otherwise disabled. The paucity of private litigation for breach of the Code may also be in part an indication that the Director of Proceedings has instituted proceedings in cases where a remedy was most likely. It may also reect consumers being advised that in their particular circumstances there was little likelihood of any remedy other than a declaration that the Code had been breached. (Depending on the standing of the particular Commissioner or Deputy Commissioner, such a declaration may add little or nothing to the preceding breach opinion). In addition to the handful of cases where it is known that aggrieved consumers have instituted proceedings, there may be others which were not formally commenced, or which were discontinued following a negotiated settlement at an early stage. If a settlement is on offer, private litigants may have less motivation to pursue a public outcome than does the Director, as the focus of private litigants may sometimes be more on compensation than on protecting public safety or publicly setting or maintaining standards. (I am grateful to the current Director of Proceedings, Mr Aaron Martin, for several of the points made in this footnote and in the related text above.) For a rare case in which the HRRT held a medical practitioner liable to pay damages under the Privacy Act 1993 for breaching the HIPC, see Director of Human Rights Proceedings v QD [2010] N.Z.H.R.R.T. 3, sub nom C v Director of Human Rights Proceedings HC Auckland CIV-2010-404-001662, 6 September 2010. Compare eg Nurses Act 1977, s 42(1); Dental Act 1988, s 54(1); Medical Practitioners Act 1995, s 109(1). Its predecessors continued in existence to deal with conduct that occurred before the HPCA Act came into force.
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Chairperson, a lay member, and three members who belong to the same health profession as the defendant.121 And there is a single set of provisions setting out the grounds for professional discipline, which are common to all.122 It is not only where the HDC has investigated an individual health practitioners conduct, expressed the opinion that it was in breach of the Code, and referred the provider to the Director, that disciplinary proceedings can be instituted before the HPDT. There is an alternative route to the tribunal. This follows a determination of a Professional Conduct Committee (PCC) that the relevant health professions authority (such as the Medical Council or the Nursing Council) has appointed to investigate a complaint.123 Some proceedings instituted by a PCC will involve conduct to which the Code has no possible application, such as false claims for reimbursement from a governmental agency.124 However, others have involved conduct that could well have been in breach of the Code, but where the Commissioner referred the matter back to the professions authority, rather than undertake a Commissioner investigation.125 A PCC can institute proceedings even if the Commissioner investigation did not conclude with a breach opinion, or did but the Commissioner decided not to refer the provider to the Director of Proceedings. In all cases where the Director institutes disciplinary proceedings, it will be apparent to members of the tribunal that the Commissioner must have been of the opinion that there was a breach of the Code (and decided to refer the provider to the Director). The bearing of the Commissioners opinion on the issue before a disciplinary tribunal was claried at an early stage. In the rst case in which the Medical Practitioners Disciplinary Tribunal dealt with proceedings instituted by a Director,126 the Director submitted that the nding of a breach by the Commissioner created a presumption of professional misconduct. The tribunal rejected this view. It pointed out that the question of whether particular conduct was in breach of the Code was separate from the question whether that conduct amounted a disciplinary offence. As it stressed in a later case, a breach of the Code does not
121 122 123 124 125
126
HPCA Act 2003, ss 86-88. HPCA Act 2003, s100. Decisions of the HPDT are available at ,http ://www.hpdt.org.nz.. See HPCA Act 2003, ss 68, 71 - 83. See eg Breeze 196/OT/08/97P (HPDT). For an example of a case (involving, amongst other Code matters, issues of informed consent) that reached the HPDT by way of the relevant PCC, see Mr S 188/Psy/08/86P (HPDT); see similarly Mary Elizabeth Casey 344/Mid/ 10/144 (HPDT). Dr Nealie 28/97/16D (MPDT).
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necessarily constitute a professional disciplinary offence.127 Sometimes the tribunal invoked the Code as one relevant standard,128 but in the great majority of cases (even where proceedings had been instituted by the Director), the Code was not mentioned in the Medical Practitioners Disciplinary Tribunals decision. The fact of the Commissioners investigation was mentioned very occasionally; a Commissioners opinion never. Since it was created, the HPDT has continued the Medical Practitioners Disciplinary Tribunals approach to the relevance of the Code, and Commissioner opinions, to the task of determining questions of professional misconduct.129 This is illustrated by the 18 HPDT cases in which the Director of Proceedings has brought a charge of professional misconduct against a medical practitioner (following a Commissioners breach opinion and referral). In only three of these 18 cases has the HPDTs decision included any reference to the Code, and in none has there been any reference to a Commissioner opinion. The three decisions that did refer to the Code all involved issues of informed consent. Even in that context, the relevant provisions of the Code were not carefully analysed. They were simply included with quotations from codes of medical ethics, Medical Council statements, and common law cases, on the basis of which the HPDT distilled various elementary propositions about informed consent.130 A similar pattern is apparent in HPDT decisions involving other types of health practitioner. Of the 28 HPDT cases in which the Director has brought charges of professional misconduct against registered health practitioners who were not medical practitioners, only four of the decisions have included any reference to the Code. In three (two of them involving informed consent),131 Code provisions were quoted along with other relevant standards.132 In the fourth, a Code provision
127 128 129
130
131
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Dr O 153/00/66D (MPDT). Eg M 04/118D (MPDT) at [66] - [67], [76]. A contributory factor may have been that the highly-regarded medical lawyer (Dr David Collins, QC, and now Solicitor-General) who was Chair of the Medical Practitioners Disciplinary Tribunal became the rst Chair of the HPDT and served in that capacity until August 2006. Dr A 18/Med/04/01D (HPDT) at [107] - [109], [118]; Dr Harman 107/ Med/06/37D (HPDT) at [85] - [88]; Dr A of xx 114/Med/06/46D (HPDT) at [21] - [23]. Dr D 19/Den05/05D (HPDT) (Code of Rights, NZ Dental Association Code of Practice, and Elias J. quoted; Parker 310/Chiro09/121D and Chiro09/ 131D (HPDT) (Code of Rights, NZ Chiropractic Board Code of Ethics, and Elias J. quoted). Samiyullah 169/Phys08/90D (HPDT) at [18] and [19] (Code cl 2, rt 2 and rt 4(2) quoted).
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was simply mentioned in passing.133 The HPDT decisions have not thrown any light on the interpretation of the Code. After more than six years, and 149 HPDT decisions dealing with issues of liability, there have been only ve references to a Commissioner investigation, and not one to a Commissioners opinion. When deciding about professional misconduct, the HPDT has never placed any weight on a Commissioner opinion that there was a breach of the Code. There have in fact been only three decisions of disciplinary tribunals that have referred, either explicitly or implicitly, to any opinions expressed by the Commissioner. In two of them the tribunal went out of its way to reject the Commissioners criticism of a health practitioner.134 Unlike the HRRT, the HPDT is not in the business of determining whether there has been a breach of the Code. Its focus is on the different issue of whether any of the grounds for professional discipline most commonly, professional misconduct have been established. In this the Code plays only an occasional and very minor role; the Commissioners opinion none whatever. The most striking consequence of the Code of Rights and the HDC Act (with its low level means of resolving complaints), along with legislation providing for competence reviews,135 has been the dramatic reduction in the number of cases proceeding to discipline.136 While the changes mentioned here do not provide a full explanation of this striking change, they go a long way towards doing so.137 There is no longer a need for disciplinary proceedings to trigger a review of a
133 134
135
136
137
Robertson 130/Mid/07/63D (HPDT) at [22] ( passing reference to cl 3) and see also at [23.2]. OFlynn 291/03/110D (MPDT), esp paras 578, 580, 583, 586; Wiggins 168/ 01/73D (MPDT), para 61. (The third decision related to penalty, not the disciplinary offence itself: Stubbs 316/Med 09/113D (HPDT), paras 16, 17, 90.) See now HPCA Act 2003, Part 3. However, in the case of medical practitioners, legislation that came into effect on the same day as the Code of Rights already provided for competence reviews as an alternative to disciplinary proceedings: see Medical Practitioners Act 1995, Part V. In the three calendar years before that in which the Code and the Medical Practitioners Act 1995 came into force (ie 1993-1995), an average of approximately eighty-four medical disciplinary charges were received by the relevant tribunal each year. The number fell sharply to an average of nineteen in the three calendar years after the Code and the Medical Practitioners Act 1995 came into effect (ie 1997-199). In the most recent three calendar years (ie 2008-2010), an average of eight disciplinary charges involving medical practitioners were received by the relevant tribunal each year. See generally DB Collins and CA Brown, The Impact of the Cartwright Report Upon the Regulation, Discipline and Accountability of Medical Practitioners in New Zealand (2009) 16 J Law & Med 589-613.
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practitioners competence or to ensure an independent investigation of a patients complaint.
VII. COMMISSIONER OPINIONS: THEORY
REALITY
As was explained earlier, once the Commissioner has concluded that a provider was in breach of the Code, the options available to the Commissioner are fairly limited. They involve only reporting, recommending, and referring.138 The Commissioner cannot discipline a provider or provide any remedy for a consumer. The Commissioner cannot even institute legal proceedings against an errant provider. The Commissioner could therefore be seen as a paper tiger, as a man-o-war without guns.139 It has been said that the Commissioner has no authority to take any action affecting . . . providers rights or liabilities.140 However, it is only when the Commissioner has carried out a formal investigation, and concluded with a breach opinion, that a consumer has the legal (if hardly ever exercised) right to sue the provider for breach of the Code.141 And unless, following a breach opinion, the Commissioner refers the provider to the Director of Proceedings, the Director cannot institute disciplinary or civil proceedings against the provider.142 So the outcome of a Commissioner investigation is not entirely without effect on the legal rights and liabilities of consumers and providers.143 Nevertheless, its legal signicance does not begin to compare with that of (say) a relatively lowly ofcial who, having reviewed the law and facts, decides that someone is entitled to a social welfare benet. Were the Commissioners opinion of greater legal signicance, like that of a social welfare ofcial, a right of appeal would almost certainly
138 139 140
141
142 143
HDC Act 1994, s45(2). This is the expression that is often quoted in connection with the rst British ofcial in New Zealand, the pre-annexation British Resident, James Busby. Stubbs v HDC HC Wellington CIV 2009-485-2146, 8 February 2010, para 33, per Ronald Young J.; and see see similarly Legal Services Agency v Garrett (2008) 19 PRNZ 144, para 24 per Dobson J. Nevertheless, where providers have been in breach of the Code (and, indeed, occasionally when they have not) providers have sometimes made an ex gratia payment by way of settlement to an aggrieved consumer, following negotiations conducted by the consumers lawyer. HDC Act 1994, s 49(1)(a). In a good many cases, however, civil proceedings could be instituted in negligence (or for breach of duciary duty), if mental but not physical injury was caused (or if exemplary damages were a possibility): see eg L v Robinson [2000] 3 NZLR 499 (HC). Many of the circumstances in which the HRRT has awarded damages are ones where a remedy might well have been available apart altogether from the Code.
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have been provided.144 As it is, the absence of a right of appeal has probably added to the enormous weight that is in practice given (except by the relevant tribunals) to Commissioner opinions that the Code has been breached. For providers, professional groups, and the wider public, the Commissioner opinions seem to count for at least as much a High Court judgment. Media, providers, and the wider public appear unaware of the very limited legal consequences that ow from a Commissioner opinion, or that they are reached by a process that would not be thought acceptable with the most minor criminal charge. As there is no right of appeal, Commissioner opinions have a nality, and seeming authority, that High Court or Court of Appeal decisions often lack.145 When Commissioner opinions are released (often in a carefully media-managed way) there is not the scope there often is with judicial proceedings to say that an appeal is under consideration, with the implication that the decision could well be wrong. Not being a judge or a tribunal chairperson, and having a statutory duty to make public statements about matters affecting the rights of consumers,146 the release of a Commissioner opinion has often been accompanied by much greater publicity than are most judgments of the Court of Appeal or even the Supreme Court. The matters the Commissioner chooses to investigate are often those that are, in every sense, of public interest.147 If several investigations raise similar issues, and lessons can be learnt from them, the opinions will sometimes be released at the same time, to increase media and professional impact. The Commissioners ofce has staff who are experienced in making prior arrangements with media outlets; so the release of an important opinion is
144
145
146 147
The fact that it is expressed as the Commissioners opinion would not have been an insuperable barrier: it could be re-expressed as a determination or a nding (as it was, in effect, in a single instance in the HDC Amendment Act 2003, s 15, substituting new paragraphs into s 51). Note also the occasional use of opinion in respect of the High Court (eg Human Rights Act 1993, s 122(1)) or a Tribunal (eg Privacy Act 1993, s 66(1)(b)), and an opinion being referred to as a determination (Privacy Act 1993, s 78(1)(2)). There has only been one reported application for review of a nal HDC opinion: Stubbs v HDC (see n 140, above). As it had the consequence of outing the practitioner whose name would not in the ordinary course of events have been disclosed, a rash of applications seems unlikely. Furthermore, the judge said that the tenor of the legislation suggested it was not a situation where hard look judicial review was appropriate. HDC Act 1994, s 14(1)(c). Many of the Commissioner opinions are available online, in anonymised form, at http://www.hdc.org.nz/decisions-case-notes/commissioners-decisions The Ofce of the HDC published (in hard copy form) a compendium of Commissioner opinions in 2005 and another in 2010: Health and Disability Commissioner Case Notes 2000-2004 (2005), Health and Disability Commissioner Case Notes 2005-2009 (2010). (For other HDC publications, see http://www.hdc.org.nz/publications)
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commonly accompanied by newspaper reports and with the Commissioner being interviewed for key radio and television programmes. The rst two Commissioners had a much greater public prole than did any judge during their years in ofce (1995-2010).148 This prole contributed to Commissioner opinions being taken much more seriously than their technical legal standing, or the process by which they were reached,149 could be said to explain.150 There is, therefore, a striking contrast between the technical legal status (and, for the most part, legal inconsequence) of a Commissioner opinion and the way in which Commissioner opinions are in fact perceived, both by individual providers and consumers and by the wider public.
VIII. A HOSTILE ENVIRONMENT?

In much of the English-speaking world (and quite possibly elsewhere), it is not uncommon for medical professional bodies to see their members as uniquely disadvantaged and under siege.151 Nevertheless, it was something of a surprise when, in 2002, the Board of the New Zealand Medical Association characterised New Zealands medicolegal environment as a hostile one, 152 or when, a couple of years
148
149
150
151
152
For example, during the years 2000-2010 the Commissioner Ron Paterson was mentioned on Radio New Zealand on 353 occasions; the Chief Justice Sian Elias on sixty-two occasions. (Information from Newztext Plus database, available via Knowledge Basket.) For understandable reasons, at the investigation stage providers do not have rights that are usually regarded as essential in judicial proceedings (eg to appear before the ultimate decision-maker and to cross-examine witnesses). A Commissioners choice of expert, from amongst those nominated and willing to serve, can be extremely inuential (and, in practice, very difcult to challenge). Only a very small proportion of the population would have been aware that the second Commissioner was an extraordinarily able lawyer, with abilities hoped for (but, in a New Zealand context, not always to be found) at High Court level or above. Most would also have been unaware of the extent of his knowledge about health law, ethics, and policy, or the regard in which he was held by his closest colleagues. So these factors cannot be taken to explain the signicance accorded his opinions, much less those of his predecessor and the Deputy Commissioners, by consumers and providers and in the media. Dr Marie Bismark, in her impressive Harkness report-back lecture No greener grass: A comparative analysis of no-fault compensation in New Zealand and medical malpractice litigation in the United States (delivered in several centres in New Zealand in July 2006), provided quotations from doctors or their representatives in the United Kingdom, the United States, and Australia, as well as New Zealand, in which their respective medico-legal environments were perceived as being particularly hostile. NZMA Policy: Medico-legal peril, adopted by the NZMA Board, 8 February 2002.
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later, the Medical Protection Society (MPS) claimed that New Zealand continues to be one of the most hostile medico-legal environments in any of the places in which MPS operates.153 Given that since the mid 1970s it has rarely been possible to sue New Zealand doctors for professional negligence,154 and that the number of medical disciplinary proceedings had dropped dramatically after the mid-1990s,155 such claims seemed extraordinary. However, they do indicate how very seriously doctors regard inquiries by the HDC and by others,156 as there is no other aspect of New Zealands legal environment that explains its being characterised as hostile to medical practitioners.157 Being the subject of a complaint is unpleasant at the best of times. When the complaint takes many months or even years to resolve it can be particularly stressful, even if (as is usually the case with the HDC) it does not lead to a breach opinion. The names of errant practitioners are hardly ever divulged on the Commissioners website or in media releases,158 but their peers sometimes learn of an investigation and of a Commissioners breach opinion. Occasionally aggrieved patients will provide the practitioners name to the media. Furthermore, many people working in the health and disability sector place high
153 154 155 156
157
158
Medical Protection Society Annual Report, quoted in Ross Howie, Doctorbashing (2005) 118 N.Z. Med. J. No 1216. For the current provision, see Injury Prevention, Rehabilitation, and Compensation Act 2001, s. 317, and note also HDC Act 1994, s 52(2). See n 136 above, and also Collins and Brown, n 137 above. Before the shift from medical misadventure to treatment injury as a key concept for the purpose of the statutory compensation scheme (see Injury Prevention, Rehabilitation and Compensation Amendment Act (No. 2) 2005), it was often necessary to investigate whether a doctor had been negligent; furthermore, there was mandatory reporting of such ndings (although very rarely did they lead on to disciplinary proceedings). Understandably, these requirements would have affected some doctors perception of the legal environment. For many decades prior to 1997 (when the law was changed by the Crimes Amendment Act 1997), medical practitioners, along with everyone else, could be convicted of manslaughter if their (not necessarily gross) negligence caused someones death. Several were prosecuted prior to the law being changed, but this cannot explain any perceived hostility of the legal environment years later. Very few individual providers have ever been named by a Commissioner or by a Deputy Commissioner. One who was named was a massage therapist who could be regarded as a sexual predator: as he was not a registered health practitioner, there was no possibility of alerting a relevant authority so his practising certicate could be withdrawn (06HDC09882, 06HDC09324, 06HDC07873). Another was a surgeon who was a repeat offender with respect to his informed consent practice (09HDC01870). For the others, see 98HDC17882, 07HDC03930, 08HDC08672, 09HDC01375. The current naming policy (Policy Document Naming Providers in Public HDC) is available at the Commissioners website: ,http://www.hdc.org.nz..
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importance on doing their best for those in their care, so an independent assessment that they have failed their patient can be devastating, even if it does not become widely known. There are signicant reputational and other consequences for District Health Boards or (for example) private aged care facilities when a Commissioner expresses the opinion that they have breached of the Code.159 In such cases it is now customary for a Commissioner to provide their names to the media. Nationwide publicity invariably follows. A system in which few complaints lead to a formal investigation, in which the Commissioner does not have power to impose sanctions, and in which subsequent civil proceedings are the exception rather than the rule, might be thought to be one that need not be taken seriously. But that is not how those subject to that jurisdiction perceive it. New Zealand medical practitioners could be regarded as being especially favoured, given that they can so rarely be sued. Certainly their professional liability insurance, or equivalent, is only a fraction of what it would be elsewhere.160 However, a negligence action that leads to a condential settlement (without any admission of liability and at no direct nancial cost to the individual practitioner) is not always as burdensome as an independent investigation carried out by or on behalf of a respected public ofcial, with a widely distributed report and the possibility of disciplinary proceedings to follow. The New Zealand complaints system is no soft option, even though legal proceedings rarely ensue.161 Claims of hostility are wide of the
159
160
161
Corporate providers usually come within the relevant statutory denitions of health care provider (HDC Act 1994, s 3) or disability services provider (HDC Act 1994, s 2). As with some individual providers, they will sometimes also be liable in consequence of so-called vicarious liability (see HDC Act 1994, s 72). In New Zealand, the maximum Medical Protection Society (MPS) subscription is NZD1506 pa which, even at the current rate of exchange, is still less than GBP750 (and was previously signicantly less). To provide one comparison: in the United Kingdom, MPS subscriptions are commonly very much more than in New Zealand. They range up to GBP59,470 pa (depending on specialty and earnings). Strictly speaking the MPS, like the Medical Defence Union (which is no longer active in New Zealand), is not an insurance company; it provides only discretionary indemnity. See Medical Defence Union v Department of Trade [1980] Ch 82; Johnson v Medical Defence Union [2006] EWHC 321 (Ch). However, in practice the MPS provides its members with the equivalent of the cover other professionals commonly obtain by way of their professional liability insurance contracts. Some indication of the seriousness with which HDC investigations are regarded, in particular by medical practitioners, is provided by the retention of lawyers (including, on occasion, Queen Counsel) and time-delaying (if usually unsuccessful) appeals to the Ombudsman about procedural issues.
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mark, but New Zealands medico-legal environment is by no means lax or undemanding. It is simply different.
IX. OTHER EXTRA-LEGAL CONSIDERATIONS

The New Zealand experience with a legislated Code and a Commissioner is not explicable simply in terms of the strengths and weaknesses of the Code and related legislation. There are other extra-legal factors that are very important, in addition to the above-mentioned use of the media. One is the size of the Commissioners budget. Funding is essential if the Commissioner is to be able to carry out the many statutory duties of the ofce.162 Unless a Commissioner is adequately nanced, it is not possible to ensure the provision of information about the Code, to maintain an advocacy service, or to employ the staff required to assess and investigate complaints. The Commissioners ofce is nanced from Vote Health, along with many other deserving and nancially constrained activities. The Commissioners necessarily limited budget provides a signicant restraint on any temptation to carry out a formal investigation of every complaint where there is a legal entitlement to do so. Another important extra-legal consideration relates to the abilities, experience, and outlook of the Commissioner which in turn has a bearing on the calibre and approach of those who work for and with the Commissioner. The rst Commissioner, Robyn Stent, was an accountant by training. Her previous involvement with the health sector had been brief and in an administrative capacity. As the rst Commissioner she faced an almost impossibly difcult task. Some consumer groups had unrealistic expectations of what a Commissioner could accomplish and were also unenthusiastic about the appointment of someone who was not known in their circles. Some providers (and most of all some medical practitioners) were hostile about the very idea of a Code and a lay Commissioner. In the event, Commissioner Stent set up the ofce from scratch and played the lead role in developing a Code that has stood the test of time. The own initiative investigation she commissioned into a major hospital163 was widely admired, and established the Commissioner as a major player in the health sector. However, her handling of complaints did not receive comparable plaudits. Handicapped
162 163
See HDC Act 1994, s 14 for the full list of duties of the Commissioner (by no means all of which have been mentioned here). Canterbury Health Limited: A Report by the Health and Disability Commissioner (1998) 278pp.
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(amongst other factors) by the inexibility of the initial law relating to Commissioner investigations, Commissioner Stent was eventually overwhelmed by the tasks. At the end of her ve-year term, she left ofce with more than 600 open les, including more than 400 investigations (many of them long delayed).164 As she approached the end of her term, Commissioner Stent reported that she felt unsupported and unappreciated and was looking forward to returning to be Robyn Stent, businesswoman.165 In many respects, the contrast with her successor could hardly be greater. Ron Paterson was one of the outstanding law graduates of his generation, who by the time he became Commissioner had many years of experience in teaching and writing about medical law. He also had a long-standing interest in medical ethics and health policy, and while on leave from his university post had worked for a regional health authority and for the Ministry of Health (on the nal stages of developing the Code). Before becoming Commissioner, he was briey the Deputy Director-General of Health responsible for safety and regulation. Most importantly, he had a keen sense of procedural fairness. Despite the ability to master les, and write reports, in a fraction of the time it would take most others, Ron Patersons early years as Commissioner were dominated by the backlog of les: he reported that at times it felt like bailing out a leaking boat. Law changes provided signicant relief, by providing for the appointment of Deputy Commissioners and for the exercise of much greater discretion in the handling of complaints. During his years as Commissioner, Ron Paterson put great effort into establishing and maintaining good relations with consumer and provider groups and with many individuals. He also communicated very effectively with the wider public by way of his numerous television, radio, and press interviews. Commissioner Patersons approach to dealing with complaints and carrying out investigations was characterised by his two oft-repeated slogans: Learning not lynching and Resolution not retribution. To the regret of many, after a decade as Commissioner he left to become Professor of Health Law and Policy at the University of Auckland. The extremely high status that the Ofce of Health and Disability Commissioner came to enjoy in New Zealand was in large measure a
164
165
Ten years later, Commissioner Paterson left ofce with half that number of open les and approximately one-tenth as many uncompleted investigations (none as long-standing as many he inherited). Donna Chisholm, Stent Bows out Bullied but Unbeaten, Sunday-Star Times, 11 July 1999, C3 (where she was also quoted as saying that the Commissioners ofce is bullied from all quarters).
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reection of the very high esteem in which Commissioner Paterson came to be held, not simply within the health and disability sector but with the wider public. It is not possible to evaluate the operation of the New Zealand legislative scheme without taking account of the individuals at the heart of it. The new Commissioner has been in ofce for too short a time for any assessment to be fair or accurate.166 However, initial indications are that the work of the ofce will continue along much the same lines as had become established when Commissioner Paterson left ofce in 2010.
X. A FORTUNATE EXPERIMENT?
If the New Zealand experiment were to be assessed on the basis of the extent to which it has led to better outcomes for patients, and reduced the numbers of avoidable mishaps, no clear conclusion could be reached. Sometimes the Commissioners have accepted a systems approach to medical mishaps and they have also been aware of the danger of their investigations contributing to a blame culture.167 Following an investigation a Commissioner has sometimes made recommendations that have been accepted, not simply by the provider, but by other provider organisations.168 However, it not possible to reach rm conclusions about the extent to which the Code and Commissioner investigations have improved outcomes for New Zealand patients
166
167
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Mr Anthony Hill became Commissioner early in the second half of 2010. Mr Hill is a former Chief Legal Advisor in the Ministry of Health, who at the time of his appointment had been a Deputy Director-General of Health for more than ve years. Thus far his media prole has been very much lower than that of his predecessors. See Alan Merry and Mary Seddon, Quality Improvement in Healthcare in New Zealand. Part 2: Are Our Patients Safe And What Are We Doing About It? (2006) 119 N Z Med J No. 1238. These quality improvement experts commended the Commissioner on a world-leading focus on addressing aspects of the system, which contribute to patient harm rather than only seeking to identify individual scapegoats when things go wrong, but went on to acknowledge that we still have a long way to go in translating this and another high-level initiative into practical gains at the organisational or facility level of the system. See eg the report on the Capital and Coast District Health Board (05HDC11908; 22 March 2007), in which the Commissioner recommended that all District Health Boards review the case and report on the safeguards in place to prevent a similar occurrence in their hospitals. All Boards duly complied. All but one of the Boards acknowledged that a similar tragedy could occur in their hospital, and noted the steps being taken to mitigate that risk: see M Seddon, Safety of Patients in New Zealand Hospitals: A Progress Report (6 October 2007), available at ,www.hdc.org.nz/publications/other-reports..
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generally.169 Insofar as there have been improvements,170 it is not clear to what extent they are ones that would have occurred, even if sometimes by a different route, in the absence of a Code and Commissioner investigations and recommendations.171 This is also true of the very great importance that has been accorded notions of informed consent, information disclosure, and communication generally, in the past two decades. There has been much greater emphasis on such matters than previously in New Zealand, and quite possibly in comparison with other similar jurisdictions.172 The Code and Commissioner can be seen as at the heart of that development. However, by 1990 there had already been a major shift in even professional opinion about such matters.173 The Code and Commissioner can be seen as reecting this development rather than the cause of it. If the New Zealand experiment were to be assessed in terms of the guidance it gives providers, it can be judged a partial success, but no more. It features in many educational programmes, but by no means all the information imparted will be retained. There is also the complication that an exceptionally high proportion of New Zealands medical workforce has trained overseas. Most providers know of the existence of the Code, but few will know all of its provisions or could appreciate their legal import. Individual providers will often be aware of particular
169
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171
172
173
Other New Zealand legislation with a bearing on patient safety includes the Health and Disability Services (Safety) Act 2001 and the Health Practitioners Competence Assurance Act 2003. There has recently been a great deal of activity on this front in New Zealand, as elsewhere. For future large-scale studies, a chronological comparator will be Peter Davis and others, Adverse Events in New Zealand Public Hospitals Pt I (2002) 115 N Z Med J No. 1167, pp 1-9; Pt II (2002) 115 N Z Med J No. 1183, pp 1-11 (based on a study of 6579 patient admissions in 1998). The New Zealand gures were within the same ballpark as those in similar studies elsewhere. There are grounds for scepticism about the extent to which the data available in Commissioner opinions can assist with the improvement of practice generally: see Sara Temelkovski and Kathleen Callaghan, Opportunities to Learn from Medical Incidents: A Review of Published Reports from the Health and Disability Commissioner (2010) 123 N Z Med J No. 1314, pp 1-12. See eg Tim Dare and others, Paternalism in Practice: Informing Patients about Expensive Unsubsidised Drugs (2010) 36 J Med Ethics 260-264 (41% of Australian of oncologists surveyed would not inform patients about expensive unsubsidised drugs, but only 11.1 % of NZ oncologists would withhold such information). Eg Medical Council of New Zealand, A Statement for the Medical Profession on Information and Consent (June 1990), reprinted in part in (1990) 103 N Z Med J 357-8. See also Bonham (1990) 103 N Z Med J 547, 549 (Medical Council ruling that Professor Bonhams failure to institute suitable standards concerning informed consent was disgraceful conduct).
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provisions, and sometimes Commissioner opinions, but the Code and opinions probably have their greatest impact on District Health Boards and other institutional providers. Their risk managers often seek to ensure that the organisations practices are in keeping with the Code requirements and Commissioner opinions. In one important respect, the New Zealand experiment has undoubtedly been a success. There is widespread awareness that patients have rights under the Code, and that they have avenues for complaint if they are unhappy about what has occurred. There is scarcely a hospital ward or doctors waiting room in the land in which a poster about the Code has not been prominently displayed. The high public prole of the rst two Commissioners also contributed to the widespread awareness that patients have rights and that there are avenues for complaint if those rights have been infringed. Even in countries where an action in damages may result in substantial nancial benets for claimants, it is apparent that the motive for instigating legal proceedings is often a wish to discover what has gone wrong, or the hope of ensuring that the same mistake is not made again.174 The Code and its associated legislation provide a means whereby, in relation to an extremely wide range of providers, patients can have their concerns (expressed as complaints) considered, and a response provided, with the possibility of the matter being pursued at a higher level if they are not happy with the initial response. The Code and associated legislation has contributed to a vast number of matters being resolved to the mutual satisfaction, or at least acceptance, of complainants and providers. Inevitably, any complaints system has very signicant emotional and other costs for many of those involved.175 No less inevitably, the outcomes are not always welcomed by all concerned. The New Zealand scheme seeks to mitigate the some of the downsides of a complaints scheme (such as long delays and unfair or unhelpful publicity) and maximise its benets. The provision of a legislated Code of Rights has transformed New Zealands medico-legal environment. In contrast to the experiment that led to its introduction a decade and a half ago, New Zealands experience with a legislated Code of Rights warrants its characterisation as a fortunate experiment.
174 175
See Marie Bismark and Edward A Dauer, Motivations for Medico-Legal Action: Lessons from New Zealand (2006) 27 J Legal Medicine 55-70. See eg Wayne Cunningham, The Immediate and Long-term Impact on New Zealand Doctors Who Receive Patient Complaints (2004) 117 N Z Med J No. 1198, pp 1-9.

A Fortunate Experiment? New Zealand's Experience With A Legislated Code of Patients' Rights. by Peter Skegg

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A Fortunate Experiment? New Zealand's Experience With A Legislated Code of Patients' Rights. by Peter Skegg

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Medical Law Review, 19, Spring 2011, pp. 235266 doi:10.

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II. ORIGINS, DEVELOPMENT, AND CONTENT

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III. LOW-LEVEL RESOLUTION

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IV. COMPLAINTS TO THE COMMISSIONER52

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V. CIVIL PROCEEDINGS FOR BREACH OF THE CODE

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100 101 102 103

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VI. DISCIPLINARY PROCEEDINGS AND THE CODE

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practitioners competence or to ensure an independent investigation of a patients complaint.

VII. COMMISSIONER OPINIONS: THEORY

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VIII. A HOSTILE ENVIRONMENT?

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IX. OTHER EXTRA-LEGAL CONSIDERATIONS

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