Arbitration raises legal issues

While legal issues involved in the neurosurgery row are still under scrutiny, South Canterbury District Health Board chief executive Chris Fleming says he would expect all of the South Island boards to endorse the findings of the expert panel.

Mr Fleming is also the chairman of health services planning for the South Island boards.

None of the South Island boards appears to have passed resolutions seeking to give the director-general of health the power to issue a binding decision, something that would require ministerial approval.

Health Minister Tony Ryall continues to take a hands-off approach, refusing to answer any media questions relating to the process.

In response to a written question from Dunedin North MP Pete Hodgson about whether Mr Ryall would take the final decision if the panel could not reach consensus, or if one or more boards opposed the consensus, he said he was not prepared to speculate on such hypothetical events.

Mr Hodgson said Mr Ryall knew that if consensus was not reached, the issue would go to the Cabinet, but he was continuing to distance himself from one of the biggest issues in his portfolio.

"I am in no doubt that he should have offered some direction much earlier on. All he needed to say was that a one-service, two-site solution was the Government's preferred option, and we could have all been saved these weeks of anxiety, anger and folly," Mr Hodgson said.

The director-general is expected to issue a final decision after receiving the panel's advice later this year and seeking any other advice he considers appropriate.

Associate director of the New Zealand Centre for Public Law at Victoria University, Dean Knight has continued to question the process adopted.

Defining the director-general of health's role in the neurosurgery row as arbitration did not mean important governance requirements of district health boards could be avoided, he said.

He was responding to last week's statement from acting director-general Andrew Bridgman on the legal issues, in which Mr Bridgman said his right to make a final decision was not related to legislation.

He said it arose from the South Island district health boards' specific request for arbitration.

Arbitration was a binding process and parties were expected to comply with the decision.

Mr Knight said since district health boards were statutory bodies, any outsourcing of their decision-making needed to be consistent with the legislative requirements.

For a decision to be lawfully outsourced, the boards must make a decision to delegate that task to the third party and the minister of health must approve that.

"If these requirements are not met, it exposes the process to potential litigation."

Trying to characterise the delegation of the decision-making function as an "arbitration" did not avoid these requirements.

The matter was the purported delegating of an important policy decision by a partly elected public body, "not the resolution of a contractual or legal dispute through the courts or independent adjudication".

If the boards had agreed the recommendation of the director-general would be binding, they had effectively delegated their decision-making power and would need to comply with the legal requirements about that.

All boards have indicated they have not passed resolutions seeking to delegate their power.

All South Island board chief executives agreed with Southern chief executive Brian Rousseau that arbitration, meaning independent evaluation of the issues and coming to an independent conclusion, had been chosen when the matter was escalated to the director-general, even though the boards' decision-making framework refers to mediation.

However, while Mr Rousseau has clearly stated he considered that meant non-binding arbitration, the other chief executives have been coy about answering questions on whether that was their understanding.

They refer instead to their intention to engage with the expert panel to help determine the most appropriate way for neurosurgery to be delivered.

The boards' collective decision-making framework under which the dispute was referred makes no reference to arbitration or delegation of power to the director-general.

Minutes from the chief executives' meeting at which the decision was made to refer the dispute to the director-general, released to the Otago Daily Times under the Official Information Act, show Nelson Marlborough did not favour an option that would see acute services based in Dunedin for two weeks out of six, due to travel times and logistics.

No mention of arbitration is made in the minutes, but the resulting referral letter, requesting the director-general appoint an arbitrator, was approved by each chief executive, Mr Fleming said.

 

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