Complaints processes need overhaul

It is disappointing there has not been widespread media coverage of this month’s report from Chief Ombudsman Peter Boshier highly critical of the processes followed by the Health and Disability Commissioner in three cases referred to him.

We are not used to the spectacle of one watchdog criticising another, and, in this instance, the ramifications extend beyond those immediately involved.

All three cases where Judge Boshier found the HDC handling of complaints was unreasonable involved previous health and disability commissioner Anthony Hill who left the job last September.

Judge Boshier recommended the HDC reconsider its decision to take no further action in two of the cases and develop a more comprehensive complaint-handling policy.

During Mr Hill’s time as commissioner there was increasing disquiet that few complaints were proceeding to full investigation and high numbers of complaints were resulting in a No Further Action (NFA) decision. We wonder if there may be hundreds more frustrated complainants out there.

At issue for the three complainants was the time the HDC took to complete a "preliminary" assessment of their complaints, between one year and nine months and three years and nine months. Although this preliminary work was extensive, the complaints were not formally investigated, and complainants were left in limbo with no conclusive finding about whether a breach of the Code of Health and Disability Services Consumers’ Rights had occurred. For two complainants that meant there was no possibility of bringing proceedings to the Human Rights Review Tribunal because a Code breach ruling is a prerequisite there. Dissatisfied complainants or providers could seek a judicial review, but the cost would be a barrier to many.

In his analysis, Judge Boshier said the purpose of the preliminary assessment was to make a prompt initial determination about how the complaint should be handled.

He did not see how the preliminary assessment could have been intended as a vehicle for extensive information gathering. That was the purpose of an investigation which would go on to analyse the evidence and make a formal finding on whether there was a breach.

Judge Boshier said the HDC appeared to consider initiating an investigation was a "detrimental punitive action against a provider that should generally be avoided unless serious malpractice is identified".

However, such strict criteria "appears to inflate the threshold for initiating an investigation beyond the statutory requirements" resulting in the HDC carrying out a disproportionate preliminary assessment instead. Those concerned about the number of NFA decisions will be hoping the ombudsman’s report is the catalyst for real change.

Auckland University law professor Jo Manning, whose 2018 research drew attention to the flaws in the HDC complaints process and the lack of a review process or ability to challenge the outcome of an investigation, describes Judge Boshier’s report as significant. She welcomes the recommendation the commissioner develop a comprehensive complaint-handling policy and that a key factor in that policy should be the wishes of the complainant.

Prof Manning points out that of the three complaint processes established in the 1990s the HDC, the Privacy Commissioner and the Human Rights Commission, the HDC’s jurisdiction is the only one where a party has no real ability to challenge the merits of an adverse decision in further proceedings.

This makes no sense.

A petition from dissatisfied surgical mesh complainant Renate Schutte, seeking the right of appeal for HDC complainants and those subject to complaints, presented to the Health Select Committee about a year ago, has yet to be reported back to Parliament. Like Prof Manning, we hope Judge Boshier’s report will encourage the committee to take this petition seriously and see what contribution it can make to ensure the HDC complaints process is better at delivering "fair and just outcomes".