A fortunate experiment? New Zealand’s experience with a legislated code of patients’ rights. By Peter Skegg

A FORTUNATE EXPERIMENT?NEW ZEALAND’S EXPERIENCEWITH A LEGISLATED CODE OF

PATIENTS’ RIGHTS

PDG SKEGG∗

Faculty of Law, University of [email protected]

I. INTRODUCTION

A Harvard professor has claimed that New Zealand is known aroundthe world for three things: its scenery, its sheep, and its ‘highly progress-ive health care and medico-legal systems’.1 New Zealand’s medico-legalsystem has two distinguishing features. One is the ‘treatment injury’ armof the statutory no-fault compensation scheme.2 The other is the legis-lated Code of Patients’ Rights and the related arrangements fordealing with patient complaints.

Were it not for the notorious ‘Unfortunate Experiment’ at theNational Women’s Hospital, the New Zealand Code would probablynot have been developed. The ‘Unfortunate Experiment’ was that of aprominent medical academic. Without gaining his patients’ consent,he withheld standard treatment for patients with cervical carcinomain situ, in the belief and hoping to prove that it was unnecessary.3

Some patients benefited in consequence, but for others the outcomeswere disastrous.4 Responses to disclosures about this ‘experiment’ led

∗ In preparing this article, I have benefited from many conversations withcurrent and former members of the Office of the Health and Disability Com-missioner, some of whom provided helpful comments on successive drafts.Research assistants in the Otago Law Faculty (most recently Calum Barrettand Jan McLeod) kindly trawled through many hundreds of tribunaldecisions. Two anonymous reviewers made helpful suggestions. I am mostgrateful for all of this assistance. I have also benefited from discussionsabout the Code and related matters with a wide range of community, provider,and student groups.

1 Michelle M Mello, ‘Book Review’ (2008) 34 Am J Law Med 563, 563.2 For a helpful account, see Ken Oliphant, ‘Beyond Misadventure: Compen-

sation for Medical Injuries in New Zealand’ [2007] Med L Rev 357 - 91.3 For a helpful and accessible account see Charlotte Paul, ‘The New Zealand

Cervical Cancer Study: Could it happen again?’ (1988) 297 Brit Med J 533-9.4 For a recent assessment see Margaret R.E. McCredie and others, ‘Conse-

quences in Women of Participating in a Study of the Natural History of Cer-vical Intraepithelial Newplasia 3’ (2010) 50 Aust NZ Jl O & G 563-570.

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to unparalleled changes in New Zealand’s medical law and ethics.Important amongst them was the statute that provided for a Code ofRights and for a Commissioner to investigate alleged breaches ofthose rights.

This article seeks to explain the development, status, scope, andeffects of the New Zealand Code of Rights in the decade and a halfsince it was made, and to explain and assess its role and that of the Com-missioner and related officials and tribunals. The article will concludewith some reflections on the New Zealand experience.

II. ORIGINS, DEVELOPMENT, AND CONTENT

When news of the ‘Unfortunate Experiment’ became public5 the Minis-ter of Health quickly appointed Judge Silvia Cartwright as a ‘Committeeof Inquiry’.6 The Cartwright Inquiry’s proceedings riveted the nationand its conclusions are still vigorously debated more than two decadeslater.7 The Cartwright Report contained many recommendations. Onewas that New Zealand law be amended to provide for a statement ofpatients’ rights and the appointment of a Health Commissioner.8 AHealth Commissioner Bill was introduced into Parliament in 1990,and eventually enacted as the Health and Disability CommissionerAct 1994 (hereinafter ‘HDC Act’ or ‘Act’).

The Cartwright Report had recommended that a statement ofpatients’ rights be included in an Act of Parliament, but neither the orig-inal 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 del-egated legislation,9 following a process in which the first Commissionerwould play a pivotal role.10 The Act specified what must, and whatcould, be included in the Code.11 The Code was, and is, contained inthe Schedule to the Health and Disability Commissioner (Code of

5 The crucial article was that by Sandra Coney and Phillida Bunkle, An Unfor-tunate Experiment at National Women’s, Metro June 1987, pp 46-65.

6 The appointment was made on 25 June 1987, in exercise of powers conferredby the Hospitals Act 1957, s 13(3). At the time of her appointment, Dame (asshe now is) Silvia Cartwright was a District Court Judge; she later became aHigh Court Judge and then Governor-General.

7 See eg Linda Bryder, A History of the ‘Unfortunate Experiment’ at NationalWomen’s Hospital (Auckland University Press, 2009) and Joanna Manninged, The Cartwright Papers (Bridget Williams Books, 2009).

8 See The Report of the Committee of Inquiry into Allegations Concerning theTreatment of Cervical Cancer at National Women’s Hospital and into otherrelated matters (hereinafter ‘Cartwright Report’), 1988, esp 215-6.

9 HDC Act 1994, s 74.10 HDC Act 1994, ss 19, 22-23. See also ibid s 21 (‘Review of Code’).11 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 andproviders have duties’ – starkly demonstrates the one-sided nature ofthe Code. Clause 1 states that every consumer has the rights in theCode, and every provider is subject to the duties in the Code andmust take action to inform consumers of their rights and enable themto exercise their rights.

Clause 2 is much the longest and most important part of the Code. Itspells out ten rights of consumers under the Code. Some indication oftheir content is provided by the list that is displayed on many thousandsof posters in New Zealand. (Vastly more consumers, and even providers,will have seen this poster than will ever examine the text of the Codeitself.) Prefaced by the heading ‘Your Rights when receiving a Healthor Disability Service’, it lists:

1 Respect2 Fair Treatment3 Dignity and Independence4 Appropriate Standards5 Communication6 Information7 Choice and Consent8 Support9 Teaching and Research10 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 7and 10 each extend over more than 40 lines of text.

Clause 3 of the Code contains the important (but oft-neglected) ‘Pro-vider compliance’ provision, whereby a provider is not in breach of theCode if the provider has taken ‘reasonable actions in the circumstances’to give effect to the rights, and comply with the duties, in the Code. Theclause goes on to make it clear that ‘the circumstances’ here means ‘allthe relevant circumstances, including the consumer’s clinical circum-stances and the provider’s resource constraints’.

Before proceeding further, it is as well to answer various questionsthat suggest themselves.

12 SR 1996/78. There has only been one relatively minor amendment to theCode: see SR 2004/116.

13 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 conse-quence of the definitions of ‘services’, ‘provider’, and ‘consumer’ thatthe Code provides,14 and even more because of the extraordinarilybroad, and applicable,15 definitions in the HDC Act.16 The Codeapplies in both the public and private sectors, to District HealthBoards and other corporate providers as well as to individual providers,to professional and to lay providers, to paid and to free services, toorthodox and to unorthodox modalities, and to disability as well asto health services.17

B. Why ‘health and disability’, rather than simply ‘health’?

The original proposal for a Health Commissioner did not envisage theCommissioner’s role extending to disability services generally and theydid not feature in the initial Health Commissioner Bill. However, inthe major restructuring that followed a change of Government late in1990, disability services came to be grouped with health services formany purposes. The main objective was to resolve long-running disputesabout responsibility for the provision of such services. Henceforth, dis-ability services were to be funded by way of Vote Health, not SocialWelfare. The Health and Disability Services Act 1993 gave effect tothis arrangement. In keeping with this development, the Health Com-missioner Bill was extended to encompass disability services, providers,and consumers.

The provision of new rights for the recipients of disability services wasnot a major factor in Government’s decision about the organisationof such services.18 However, one consequence of this change hasbeen the provision of rights (and, most importantly, a complaintsprocedure) for the recipients of disability services. It is most unlikelythat this would have occurred in the absence of the overarchingorganisational change.

C. Why ‘consumer’ rather than ‘patient’?

The Cartwright Report’s use of the word ‘patient’ was unexceptionaland uncontroversial. However, in the immediate aftermath of theReport, there was a reaction (in limited but extremely influential

14 Code, clause 4.15 As to the applicability of the statutory definitions to the Code, see Interpret-

ation Act 1999, s 34.16 HDC Act 1994, ss 2-3.17 As to vicarious liability, see HDC Act 1994, s 72.18 See eg Support for Independence for People with Disabilities: A New Deal. A

Government Statement on the Funding and Delivery of Health and DisabilityServices (1992), 1–2.


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circles) to that term.19 ‘Client’ or ‘consumer’ came into widespread usein official documents, despite the fact that they too have their draw-backs. Of the two, ‘consumer’ is probably the better, as ‘client’ is par-ticularly inappropriate when someone is being treated involuntarily atsomeone else’s 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 thatthe Code and Commissioner would extend to disability services. Somerecipients of disability services vehemently reject the medicalisation oftheir condition, to which the word ‘patient’ might seem to point.

In the wider community, and even in hospitals, attempts to suppress ordiscourage the use of the word ‘patient’ have largely failed. In partbecause of this, and in part because the largest category of complaintsinvolve hospitals and general practitioners (where the word ‘patient’ isespecially apt), the second Commissioner took a lead in referring to theCode as a Code of Patients’ Rights. Its lengthy official title has handi-capped 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 rangeof legal (and non-legal) instruments. The Code of Rights comes wellwithin the range of this usage. However, it is not a code in the senseof providing a comprehensive and self-contained statement of the law,which does not require recourse to other legal sources. Many of thekey terms used in the Code (such as services, provider, and consumer)can only be fully understood in the light of definitions provided in theHDC Act.20 And the Code relies on the general law relating to capacityto consent (part statutory, part common law),21 and sometimes makesexpress reference to the common law.22

E. In what sense ‘rights’?

Only a tiny proportion of aggrieved consumers can in practice obtaindamages, or any other legal remedy, in consequence of even an admittedbreach of the Code. Nor is there any criminal liability for breach of the

19 This is exemplified by the Health Commissioner Bill 1990 eschewing theword ‘patient’ and using the term ‘consumer’ throughout. But see also egNew Zealand Health Council Working Party on Informed Consent, InformedConsent – A Discussion Paper and Draft Standard for Patient Care Services(June 1989) (using ‘client’ rather than ‘patient’ throughout) and the Depart-ment of Health Working Party on Informed Consent, Principles & Guide-lines for Informed Choice & Consent (May 1991) (using the term ‘user’rather than ‘patient’ throughout).

20 See especially HDC Act 1994, ss 2-3.21 See Code, cl 2, rt 7(2),(3); cl 4 (definition of ‘consumer’).22 Code cl 2, rt 7(1),(5).


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Code (although conduct that breaches the Code may very occasionallyamount to a crime). However, the Code in conjunction with other relevantlegislation provides complainants with various legal entitlements – andmost importantly a statutory complaints process – that they did nothave previously.

F. Rights, Ancient and Modern?

One of the most frequently invoked provisions of the Code23 reflects thelong-established principle, by virtue of which there is a right to have ser-vices provided with reasonable care and skill. Another much-used pro-vision24 reflects a principle that was already becoming established inNew Zealand, quite apart from the Code: the patient’s right to the infor-mation that a reasonable patient, in that patient’s circumstances, wouldrequire or expect.25 But the Code was innovative in various respects, notleast in its express provision of a right to be treated with respect26 and aright to have services provided in a manner that respects the dignity ofthe individual.27 There are aspects of all ten rights in clause 2 of theCode that go beyond what was previously provided, either by thecommon law or by statute.

The right to have services provided with reasonable care and skill issupplemented in the Code by right 4(2), which provides a (legal) rightto ‘have services provided that comply with legal, professional,ethical, and other relevant standards’.28 Law and ethics had long inter-mingled in a professional disciplinary context, but by right 4(2) theCode expressly converts ethical standards into relevant legal ones.

The law relating to the recipients of disability services had receivedmuch less attention, and was much less developed, than that relatingto patients. Even the drafter of the Act did not envisage the ‘informedconsent’ provisions of the Code extending to disability services.29

However, the Act was drafted in a way that did not preclude thisbeing done,30 as for the most part it was.31 Hence, in terms of additionalrights, the Code provides (even) more new rights for the users of disabil-ity services than it does for the users of health services.

23 Code, cl 2, rt 4(1).24 Code, cl 2, rt 6(1) and (2).25 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.

26 Code, cl 2, rt 1(1).27 Code, cl 2, rt 3.28 Emphasis added.29 See HDC Act, s 2 (definition of ‘informed consent’) and s 20(1)(a).30 HDC Act 1994, s 20(2)(a).31 Code, cl 2 rt 7(1); cf rt 7(6).


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The requirement that providers have a complaints procedure thatcomplies with the stringent obligations specified in the Code, and dealappropriately with any complaint received by them,32 was a particularlysignificant new right provided by the Code.

G. What is missing?

Express provisions relating to information privacy and confidentialityare a notable omission from the Code. Initially it was envisaged thatthe Code would deal with such issues.33 However, after the introductionof Health Commissioner Bill, there were major developments in NewZealand’s information privacy law. The Privacy Act 1993 set outvarious Information Privacy Principles34 and authorised the PrivacyCommissioner to issue codes of practice varying these principles in par-ticular contexts.35 A detailed Health Information Privacy Code (HIPC)soon followed.36 The statutory requirement that the Code of Rightsinclude provisions relating to privacy was eventually expressed in away that excluded matters within the purview of the Privacy Commis-sioner and the HIPC.37 Infringements of the HIPC, or related legislationor 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 theHealth and Disability Commissioner forwards complaints about suchmatters to the Privacy Commissioner.39

The Government that came into power soon after the introduction ofHealth Commissioner Bill was attracted by the notion of a list of ‘coreservices’, to which everyone should have access, on affordable termsand without unreasonable delay.40 It raised the possibility of a list ofcore health services being specified in general legislation, and said thatthat the Office of the Health Commissioner ‘might be a suitable placeto locate responsibility for enforcement of the core’.41 The core servicesproject did not proceed as originally envisaged.42 In consequence, the

32 Code, cl 2, rt 10.33 See Health Commissioner Bill 1990, cl 17(3)(c)(i).34 Privacy Act 1993, s 6.35 Privacy Act 1993, s 46.36 The latest version of the HIPC can be downloaded from ,http://privacy.org.

nz/health-information-privacy-code/..37 HDC Act 1994, s 20(1)(c)(i).38 Code, cl 2, rt 4(2).39 See A Review of the Health and Disability Commissioner Act 1994 and Code

of Health and Disability Services Consumers’ Rights: Report to the Ministerof Health/ June 2009 (Health and Disability Commissioner, 2009), p 13.

40 Your Health and the Public Health: A Statement of Government HealthPolicy (Ministry of Health, 1991), p 59.

41 Ibid, p 86.42 See Health and Disability Services Act 1993, s 6.


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Health and Disability Commissioner was not charged with this respon-sibility. This is just as well. Had an agreed list of ‘core services’ eventu-ated, this task would probably have dwarfed the Commissioner’s otherresponsibilities.

There are many circumstances where a failure to provide appropriateand available treatment, or a referral, would be in breach of the Code.43

However, the Code provides no guaranteed right of access to treatmentthat is not already available. Sometimes expressly,44 sometimes byimplication,45 the Code of Rights recognises the reality of resourceconstraints.46

III. LOW-LEVEL RESOLUTION

The Code, and the related legislation, has resulted in well-publicisedmeans 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 consumerhas the right to complain about a provider in any form appropriate tothat consumer. Under right 10 a complaint may be made to a provider,to anyone authorised to receive complaints about that provider, or toany other ‘appropriate’ person. The latter category expressly includesboth an independent advocate provided under the HDC Act and alsothe Commissioner. Right 10 goes on to provide that every providermust facilitate ‘the fair, simple, speedy, and efficient resolution of com-plaints’, and spells out in some detail the complaints procedures that arerequired and the time lines within which they must operate.

Right 10 also requires a provider to inform a complainant of the avail-ability of the independent advocates and the Commissioner. Thisincreases the likelihood of providers responding appropriately to com-plaints received. The vast majority of complaints are dealt with at thislow level.

Providers do not make a habit of rejecting complaints on jurisdic-tional grounds. In practice, therefore, right 10 of the Code assists inresolving matters that are beyond, as well as within, the ambit of the

43 A failure to provide a health or disability service by reason of a prohibitedground of discrimination (such as sex, race, or employment status) is gener-ally unlawful, both under the Human Rights Act 1993 and in terms of right 2of the Code. Complaints that deal solely with such matters are in practice for-warded to the Chief Human Rights Commissioner.

44 Code, cl 3(3).45 Code, cl 2, rt 5(1).46 Whether Commissioners have adequately taken account of these constraints

remains a matter of debate. In practice, there is no entirely satisfactory sol-ution: whatever approach is adopted, it will be open to legitimate objections.


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Code. If an adequate explanation can be provided, or resolutionreached, it usually will be.

Like the Code and the Commissioner, the Health and Disability Con-sumer Advocacy Service originated from a recommendation in the Cart-wright Report.47 The Director of Advocacy is appointed by theCommissioner, but is under a statutory obligation to act indepen-dently.48 The arrangements have changed over the years: nowadaysadvocates are employed in 25 community-based offices around thecountry. The advocates are neither investigators nor mediators, buttheir roles include assisting aggrieved consumers to resolve complaintsby agreement.49 They assist consumers with some thousands of com-plaints each year,50 the overwhelming majority of which are resolvedwithout being referred to the Commissioner.51

IV. COMPLAINTS TO THE COMMISSIONER52

Complaints reach the Commissioner’s office from a variety of sources:consumers, people entitled to consent on behalf of consumers, advo-cates, and anyone else (including, on occasion, ‘whistleblower’ provi-ders).53 In addition, the Medical Council and other registrationauthorities are now required to forward to the Commissioner any com-plaint received by them ‘alleging that the practice or conduct of a health

47 See Cartwright Report 173-175, 213-214 (provision of a patient advocate atNational Women’s Hospital). This recommendation led on to the broaderproposals in MJ Brucker and JJ Nuthall, Patient Advocates and a HealthCommissioner for New Zealand: A Discussion Paper (August 1988) andthen the Report of the Working Party on the Establishment of the HealthCommissioner(s) (March 1989). See now HDC Act 1994, Part 3.

48 HDC Act 1994, s 24(2), and see also s 26.49 HDC Act 1994, s 30(1)(h).50 Each year the Advocacy Services has typically managed at least four times as

many complaints as were received by the Commissioner: never less than4000; rarely more than 7000. (Details are provided in the Annual Reports:see n 52, below.)

51 If the complaint has been made to the advocate (as envisaged by both right 10and the Act), and the advocate is unable to resolve it, the advocate is requiredto refer the complaint to the Commissioner: see HDC Act 1994, s 31(3)(a).

52 Part IV of this article provides an account of the law and practice in the firstquarter of 2010 (during the final stages of Ron Paterson’s decade as Commis-sioner and long after the coming into force of the significant Health and Dis-ability Commissioner Amendment Act 2003). My understanding of theprocesses was advanced by a series of interviews conducted early in 2010with the then Commissioner, the two Deputy Commissioners, the Commis-sioner’s Chief Legal Advisor, and the Director of Proceedings. I am mostgrateful to them for their assistance. This account also draws on the wealthof information available at the HDC website: ,http://www.hdc.org.nz/..(The Annual Reports, accessible there, are the source of many of thefigures provided here.)

53 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 authority’s own pro-cesses are then put on hold while the Commissioner deals with thematter.

A. Preliminary assessments

On average during the past decade, a thousand or more ‘within jurisdic-tion’ complaints have been received by the Commissioner each year55 –some initially orally, some on the internet (where a complaints form isprovided), and others in more conventional written form.56 It is clearlybeyond the capacity of the Commissioner, even in conjunction with twoDeputy Commissioners,57 to explore all aspects of these complaints.Initial enquiries are therefore made by staff members acting on the Com-missioner’s behalf, exercising powers delegated by the Commissioner.58

The initial handling of a complaint is overseen by a ComplaintsAssessment Manager, who is assisted by assessors who are part of theComplaints Assessment Team. Typically, a response is sought fromthe provider whose conduct is the subject of the complaint, and the pro-vider’s clinical notes are accessed. The provider’s response is oftenrelayed to the complainant for comment, and the Complaints Assess-ment Team then decides what course of action is appropriate. It cancall 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 bythe Commissioner that may follow, section 6 of the Act provides thelodestar. It provides:59

The purpose of this Act is to promote and protect the rights ofhealth consumers and disability services consumers, and, to that

54 Health Practitioners Competence Assurance Act 2003, s 64.55 The highest number of complaints was in the 2009-10 year, when 1,573 com-

plaints were received by the Office of the HDC. See also n 69, below.56 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 theCommissioner’s jurisdiction.

57 The original s 9 of HDC Act 1994 provided for the appointment of a DeputyCommissioner. This provision was replaced, first by the HDC AmendmentAct 2003 s 6 and then by the HDC Amendment Act 2007 s 6 (both substitut-ing a new s 9, and both providing for the appointment of more than oneDeputy Commissioner). Amongst other things, both Deputy Commissionersexercise powers delegated by the Commissioner to investigate complaintsabout specific categories of providers. For the sake of simplicity, text ofthis article refers to the Commissioner alone. (Commissioner Paterson dealtwith all complaints about medical practitioners, other than those relatingto the provision of community aged care services.)

58 For the extent of the Commissioner’s power to delegate, see HDC Act 1994,ss 68-71 and the Crown Entities Act 2004.

59 Emphasis added. See, similarly, the Long Title of the Act, which also makesreference to securing ‘the fair, simple, speedy, and efficient resolution ofcomplaints’.


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end, to facilitate the fair, simple, speedy, and efficient resolution ofcomplaints 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 canbe made at any time after completing a preliminary assessment, if theCommissioner considers that action, or further action, is ‘unnecessaryor inappropriate’.61

In most cases, the preliminary assessment will be followed by someaction. The legislation provides for several possibilities.62 One is forthe complaint to be referred to an advocate,63 who can assist the consu-mer in attempting to resolve the complaint by agreement with the pro-vider. Alternatively, where the complaint does not raise questions aboutthe health and safety of members of the public, it can be referred to theprovider, in the hope of its being appropriately resolved.64 The outcomemust be reported to the Commissioner,65 who can then decide whetherto pursue some other course.

Where it appears that the competence of a health practitioner, or thepractitioner’s fitness to practice, may be in doubt, the complaint may bereferred to the appropriate authority so the authority can considerwhether a competence review is appropriate.66 In circumstances speci-fied in the legislation, complaints can also be referred to the AccidentCompensation Corporation, the Director-General of Health, the ChiefHuman Rights Commissioner, the Chief Ombudsman, or the PrivacyCommissioner.67 By no means all suspected or probable breaches ofthe Code proceed to formal investigation. In many cases, the mattercan be resolved, or an appropriate response provided, without aformal investigation. However, the most serious complaints willproceed to a formal investigation.

In addition, the Commissioner has the power to commence an ‘owninitiative’ investigation whenever the action of a provider appears tothe Commissioner to be in breach of the Code.68 This power is usedsparingly, but on occasion very effectively.

60 See HDC Act 1994, s 33.61 HDC Act 1994, s 38.62 See HDC Act 1994, ss 33-39.63 HDC Act 1994, s 37.64 HDC Act 1994, s 34(1)(d).65 HDC Act 1994, s 35(c).66 HDC Act 1994, s 34(1)(a), but note also s 34(5).67 HDC Act 1994, s 34(1)(b)-(c); and see also s 39.68 HDC Act 1994, s 40(3).


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B. Formal investigations

The proportion of (within-jurisdiction) complaints that have led on to aformal investigation declined markedly after the HDC Amendment Act2003 came into force, and continues to decline.69

As with the initial assessment of complaints, members of the Commis-sioner’s staff play an important role in the formal investigations. TheCommissioner oversees the investigation, and makes key decisions, butthe information is gathered by others on the Commissioner’s behalf.In most cases, a practitioner from the same field as the provider underinvestigation is asked to provide an expert opinion on the provider’sconduct in the light of the Code.

The Act sets out various procedural requirements,70 but leaves manymatters to the discretion of the Commissioner. Thus the first Commis-sioner did not inform providers of the names of the experts on whoseadvice she relied, or explain why they were chosen. In contrast, thesecond Commissioner obtained the agreement of practitioner groupsto nominate colleagues with appropriate expertise, who were preparedto be identified in connection with the expert opinion they provided.71

Once a provisional opinion has been drafted, all aspects of it arereviewed by members of the Commissioner’s legal team. They workthrough a long checklist reviewing every aspect of the opinion, notsimply those involving the law. The provisional opinion is then sentboth to the complainant and to the provider or providers, with an invi-tation to respond.

If the provisional opinion is a ‘breach’ rather than a ‘no breach’ one,providers will often obtain their own expert opinion, contradicting orqualifying the advice on which the Commissioner relied. These com-ments are eventually provided to the Commissioner’s expert, who willprovide a response (occasionally retreating from the earlier viewpoint,but more commonly reaffirming it or simply modifying the terms inwhich it is expressed). It is then for the Commissioner to reach andexpress a final opinion, in the light of all the evidence and submissions.Whatever the final outcome, all relevant portions of the provider’sresponse to the provisional opinion are included in the final opinion.72

69 In the four years ending in mid-2004, there were on average 1,034 (withinjurisdiction) complaints received by the Commissioner each year, of whichan average of 252 proceeded to a formal investigation. In the four yearsending in mid-2010 an average of 1246 (within jurisdiction) complaintswere received each year, but formal investigations reduced to an annualaverage of 88.

70 HDC Act 1994, ss 40-44.71 See Ron Paterson, Naming Advisors: Pros and Cons New Zealand GP, 30

May 2001, p10.72 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 Act’s objec-tive of fairness in complaints resolution and its related objectives of sim-plicity, speed, and efficiency. Some compromise between theseadmirable 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 oppor-tunity to put their case in person to the Commissioner,73 who willusually rely on evidence gathered by others. There is no right to cross-examine witnesses, and damning conclusions will sometimes bereached on the papers. It would be very surprising indeed if a Commis-sioner’s opinions would always have been the same, if complainants andproviders had had the opportunity to present their case in the way that iscommonplace before courts and tribunals.74

The final opinion reads like the judgment of a court, with a full andcareful account of both the facts and law. The Commissioner (orDeputy Commissioner, for investigations delegated to a Deputy Com-missioner) reads and takes full responsibility for both the provisionaland final opinions, even though in practice much of them (including dis-cussion of the Code) will have been drafted by others. The Commis-sioner will commonly edit or alter a draft prepared by others, but willhardly ever set aside an entire draft and start again from scratch.75

If, at the conclusion of an investigation, the Commissioner is ‘of theopinion’ that there was a breach of the Code, the Commissioner hasonly a few courses of action available. The Act provides that the Com-missioner can report the Commissioner’s opinion, with reasons, tovarious people and authorities76; can make recommendations77; can

73 But see HDC Act 1994, ss 59, 67.74 However, the Act provides one safeguard that is not available to parties, or to

witnesses, in civil or criminal proceedings: the Commissioner is not permittedto make adverse comments about someone without providing that personwith an opportunity to be ‘heard’ and to make a written statement inanswer to the adverse comment (HDC Act 1994, s67(a)). Where thatperson so requires, that written statement (or a fair and accurate summaryof it) must accompany the Commissioner’s report (HDC Act 1994, s 67(b)).

75 The information in the last two sentences of the above paragraph (like a gooddeal 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. (Mysource for those two sentences is provided here at the request of a reviewer.)Quite apart from Commissioner Paterson’s disclosure, examination of the fullrange and bulk of his (and even more, his predecessor’s) Opinions wouldquickly lead an observer to the realization that no one individual couldhave completed these tasks alone, even if without the Commissioner’smany other responsibilities.

76 HDC Act 1994, s 45(2)(a),(b),(c).77 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 tonotify 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 theprovider to the Director of Proceedings, so the Director can decidewhether to institute legal proceedings.79

C. The Director of Proceedings

Like the Director of Advocacy, the Director of Proceedings is appointedand employed by the Commissioner.80 However, again like the Directorof Advocacy, the Act provides that in exercising the Director’s powers,duties, and functions, the Director is to act independently.81 The Direc-tor is not responsible to the Commissioner, except for the efficient, effec-tive, and economic management of the Director’s activities.82

The Director of Proceedings is empowered to act when, following abreach 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 HumanRights Review Tribunal.85 Another, in the case of registered health prac-titioners, is the institution of disciplinary proceedings before the HealthPractitioners Disciplinary Tribunal.86

When a matter is referred to the Director, the Director and the Direc-tor’s staff review the entire file, not simply the Commissioner’s opinion.In most years during the past decade, the resources available to theDirector would not have sufficed had the Director instituted proceedingsagainst all providers referred by the Commissioner. The Director has toweigh a range of considerations before deciding which cases to pursuefurther. 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.

78 HDC Act 1994, s 45(2)(d),(e).79 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 44.80 HDC Act 1994, s 15(1).81 HDC Act 1994, s 15(2).82 HDC Act 1994, s 15(3).83 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’.84 HDC Act 1994, s 45(2)(f).85 HDC Act 1994, ss 45(2)(f )(ii), 49; Health Practitioners Competence Assur-

ance Act 2003, s 91. (On the meaning of ‘disciplinary proceedings’ in theHDC Act 1994, see ibid s 2)

86 HDC Act 1994, ss 45(2)(f)(iii), 49; Health Practitioners Competence Assur-ance Act 2003, s 91. The HDC Act 1994, s 47, provides the Director with afew other options. However, they do not require consideration here as theyare hardly ever exercised. The one situation in which the current Directorhas availed himself of these possibilities was in an inquest early in 2010,when he sought (unsuccessfully) to persuade the coroner to make a rec-ommendation about the recording of laparoscopic surgery.


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the public interest in (for example) exposing or disciplining a prac-titioner 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 theCode.87 Claims are heard before the Human Rights Review Tribunal(HRRT),88 rather than the ordinary courts. The tribunal has alegally-qualified Chairperson,89 who sits with two other membersdrawn from a panel of (mainly lay) persons maintained for thatpurpose.90

Consistent with the HDC Act’s emphasis on low-level resolution,there is no direct access to the tribunal to seek damages, or any otherremedy, for breach of the Code of Rights. The Commissioner is ineffect the gatekeeper for the HRRT, in respect of proceedings forbreach of the Code.91 Unless the Commissioner has completed aninvestigation, and expressed the opinion that there was a breach ofthe Code in respect of the particular matter, it is not possible to com-mence civil proceedings for breach of the Code in respect of thatmatter.92

Following a breach opinion, it is greatly to an aggrieved consumer’sadvantage if the Commissioner refers the provider to the Director ofProceedings93 and the Director then decides to institute proceedingsbefore the HRRT.94 The litigation (or negotiations for a financial settle-ment) then proceed without cost (or risk of costs) to the consumer, butdamages recovered by the Director are paid to the person on whosebehalf proceedings were brought.95 In practice, all of the proceedingsinvolving the Code that have resulted in a substantive hearing beforethe HRRT about whether there has been a breach of the Code, or a

87 HDC Act 1994, s 50(2).88 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 Act1993, and the HDC Act. Until 2002 it was known as the ComplaintsReview Tribunal (CRT). See generally Theo Baker, ‘The Human RightsReview Tribunal and the Rights of Health and Disability Consumers inNew Zealand’ (2008) 16 J Law & Med 85-102.

89 Human Rights Act 1993, ss 98-110.90 Human Rights Act 1993, ss 98(a), 101.91 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].

92 See Perfect v Bay of Plenty DHB [2004] N.Z.H.R.R.T. 3. Compare with thePrivacy Act 1993, s 82 (esp s82(1)(a)) and s 83.

93 See HDC Act 1994, s 45(2)(f ).94 See HDC Act 1994, s 50.95 See HDC Act 1994, s 57(2).


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final order from the HRRT indicating that there has (or has not) been abreach, have been instituted by the Director.96

In the nearly fifteen years since this jurisdiction came into being, pro-ceedings brought on behalf of thirty-one consumers have resulted in afinal order about breach of the Code.97 In some of these ‘cases’98

there was a contested hearing, but in many an order (involving a declara-tion) was made by consent.99

96 Perfect v Bay of Plenty DHB [2004] N.Z.H.R.R.T. 3 was instituted by Mrand Mrs Perfect as representatives of their son, but the HRRT held it hadno jurisdiction to hear the case in the absence of a breach opinion from theCommissioner.

97 In all of these cases the plaintiff was the Director of Proceedings. To savespace in the footnotes that follow, the cases are here numbered (in order ofthe date of the tribunal’s decision), showing the name or initial of the defen-dant. With the two decisions that are not available for downloading from,http://www.nzlii.org/nz/cases/NZHRRT/., the tribunal reference anddecision numbers are provided. On those occasions where the proceedingsand 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 Septem-ber 1998, sub nom O’Neil [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: Mat-thews [2004] N.Z.H.R.R.T. 9; Case 7: SLD [2004] N.Z.H.R.R.T. 19; Case8: 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: IsaacHRRT 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; Case21: TMC [2008] N.Z.H.R.R.T. 6; Case 22: Clarin [2009] N.Z.H. R.R.T.1; Case 23: O’Malley [2009] N.Z.H.R.R.T. 2; Case 24: Douglas [Complai-nant 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 forthe purpose of this study, but are not cited here as they involved interlocutorymatters, or costs, name suppression etc.)

98 Throughout this discussion of civil liability for breach of the Code, ‘case’ isused to refer to the proceedings in respect of each individual consumer.

99 There was a contested hearing in cases 1, 4, 8 - 9, 11, 14 - 15, and 17 - 20. Anorder 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 theCode; the decision focused on remedies. In cases 23 and 31 evidence ofbreach was heard and accepted in the absence of the defendant, who chosenot to attend.


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In 24 of the 31 cases, the defendant was a caregiver, therapist, or otherprovider who, not being a registered health practitioner, was not subjectto the jurisdiction of a statutory disciplinary tribunal.100 In the othercases the defendant was a registered practitioner, so was also subjectto disciplinary proceedings.101 Civil rather than disciplinaryproceedings are required if a consumer is to receive damages forbreach of the Code, or if one of the other statutory remedies is to begranted.102

The availability of damages is affected by the ‘statutory bar’, wherebya plaintiff cannot seek, nor the tribunal award, compensatory damagesfor ‘personal injury’ that comes within New Zealand’s statutory com-pensation scheme.103 Negligent treatment breaches right 4(1) of theCode, but if physical injury results, a claim for compensatory damagesfor breach of the Code (as at common law) is precluded by the ‘statutorybar’. All eleven awards of compensatory damages have been for humi-liation, loss of dignity, or injury to feelings of the aggrieved person.104

In addition, in eight of these cases, ‘punitive’ damages were alsoawarded, on the ground that the defendant had acted in flagrant disre-gard of the rights of the aggrieved person.105 In six of the thirty-onecases a restraining order was made.106

A remarkable proportion of the cases share a common characteristic. In13 of the 31 cases sexual intercourse, or inappropriate touching of breastsor genitals, was a factor in the eventual declaration that the Code wasbreached.107 In the 26 of the 31 cases, the HRRT declared there was abreach of right 4 (broadly, the right to appropriate treatment).108 Sixcases involved failures to inform and to obtain informed consent.109

100 See cases 3 - 4, 7 - 12, 14 -19, and 22 - 31.101 See cases 1 - 2, 5 - 6, 13, and 20 - 21.102 Cf Sentencing Act 2002, ss 32-38 (reparation). As to the other remedies, see

HDC Act 1994, s 54(1).103 HDC Act 1994, s 52(3). See similarly the Accident Compensation Act 2001

(until 3 March 2010 entitled the Injury Prevention, Rehabilitation, andCompensation Act 2001), s 317.

104 HDC Act 1994, ss 54(1)(a), 57(1)(c). The cases were 2, 4, 7, 9, 11 - 12, 17 -19, 23, and 31.

105 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.

106 Cases 3, 7, 10, and 17 - 19.107 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 inappropriatetouching of the consumer).

108 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.

109 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 declaredbreached.110

When it comes to proceedings before the HRRT, a Commissioneropinion that there was a breach of the Code does not create a presump-tion that there was a breach. The HRRT determines the matter for itself,sometimes with the benefit of evidence or submissions that would nothave been available to the Commissioner.111

The HRRT has not cited, much less given any weight to, a Com-missioner opinion that there was a breach of the Code – exceptonce, to determine that it had jurisdiction to deal with the matterin the first place.112 Other opinions of the Commissioner about theinterpretation of the Code have not been cited in any decision ofthe HRRT.

Since August 2004, consumers113 have been free to institute proceed-ings in most cases where, following an investigation, a Commissionerhas expressed the opinion that the Code has been breached.114 Pre-viously this only became a possibility in some cases in which the Com-missioner had referred the matter to the Director of Proceedings.115

However, as fewer complaints now proceed to a formal investigationand then a breach opinion,116 the number of consumers who are freeto institute proceedings before the HRRT has not increased as muchas might have been expected. Hardly any of the hundreds who havebeen free to institute civil proceedings over the years have in fact doneso, or have persisted with proceedings once commenced. This mayreflect the disincentive of having to fund such proceedings, and alsothe emotional and physical demands that proceedings could impose

110 Other rights breached were right 1(1) (case 23); right 1(2) (cases 4, 8 - 9, and26 - 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).

111 There is no case in which the HRRT has reached an entirely different con-clusion from the Commissioner, but in cases 4, 8 - 9, 20 and 23 the Direc-tor’s claims were not upheld in all respects.

112 Perfect v Bay of Plenty DHB [2004] N.Z.H.R.R.T. 3.113 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 onlyconsumers with rights under the Code can be aggrieved persons for the pur-poses of the Act. (On one issue left open by the Court of Appeal, see nowPilai v Iyengar [2011] N.Z.H.R.R.T. 3.)

114 HDC Act 1994, s 51, as it has been since its amendment by the HDCAmendment Act 2003, s 15.

115 See HDC Act 1994, s51, as it was prior to its amendment by the HDCAmendment Act 2003, s 15.

116 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 inthe year ending 30 June 2010 (36, which resulted in 5 referrals to theDirector).


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on ill or otherwise disabled parties.117 This underlines the value of theDirector being able to take action on the consumer’s behalf, withoutfinancial outlay or risk to the consumer.

Even if – which seems doubtful – there have been as many settle-ments as there have been concluded cases before the HRRT, it is appar-ent that only a tiny proportion of consumers have benefited from thenew form of civil liability created by the HDC Act. In particular, nomedical practitioners have been required by the HRRT to paydamages 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 insti-tuted proceedings, they have been before a disciplinary tribunal ratherthan the HRRT.

When the HDC Act and the Code first came into force, there weredifferent disciplinary tribunals for different health professions. Further-more, the grounds for discipline varied somewhat from one health pro-fession to another.119 The Health Practitioners Competence AssuranceAct 2003 (HPCA Act) changed all this. There is now a single disciplin-ary tribunal – the Health Practitioners Disciplinary Tribunal (HPDT) –for 12 different health professions.120 The HPDT sits with a lawyer

117 Litigation is rarely embarked upon lightly, even by those who are not poor,unwell, or otherwise disabled. The paucity of private litigation for breach ofthe Code may also be in part an indication that the Director of Proceedingshas instituted proceedings in cases where a remedy was most likely. It mayalso reflect consumers being advised that in their particular circumstancesthere was little likelihood of any remedy other than a declaration that theCode had been breached. (Depending on the standing of the particular Com-missioner or Deputy Commissioner, such a declaration may add little ornothing to the preceding breach opinion). In addition to the handful ofcases where it is known that aggrieved consumers have instituted proceed-ings, there may be others which were not formally commenced, or whichwere discontinued following a negotiated settlement at an early stage. If asettlement is on offer, private litigants may have less motivation to pursuea public outcome than does the Director, as the focus of private litigantsmay sometimes be more on compensation than on protecting public safetyor publicly setting or maintaining standards. (I am grateful to the currentDirector of Proceedings, Mr Aaron Martin, for several of the points madein this footnote and in the related text above.)

118 For a rare case in which the HRRT held a medical practitioner liable to paydamages under the Privacy Act 1993 for breaching the HIPC, see Director ofHuman Rights Proceedings v QD [2010] N.Z.H.R.R.T. 3, sub nom C vDirector of Human Rights Proceedings HC AucklandCIV-2010-404-001662, 6 September 2010.

119 Compare eg Nurses Act 1977, s 42(1); Dental Act 1988, s 54(1); MedicalPractitioners Act 1995, s 109(1).

120 Its predecessors continued in existence to deal with conduct that occurredbefore the HPCA Act came into force.


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Chairperson, a lay member, and three members who belong to the samehealth profession as the defendant.121 And there is a single set of pro-visions setting out the grounds for professional discipline, which arecommon to all.122

It is not only where the HDC has investigated an individual healthpractitioner’s conduct, expressed the opinion that it was in breach ofthe Code, and referred the provider to the Director, that disciplinaryproceedings can be instituted before the HPDT. There is an alternativeroute to the tribunal. This follows a determination of a ProfessionalConduct Committee (PCC) that the relevant health profession’s ‘auth-ority’ (such as the Medical Council or the Nursing Council) hasappointed to investigate a complaint.123 Some proceedings institutedby a PCC will involve conduct to which the Code has no possible appli-cation, such as false claims for reimbursement from a governmentalagency.124 However, others have involved conduct that could wellhave been in breach of the Code, but where the Commissioner referredthe matter back to the profession’s ‘authority’, rather than undertake aCommissioner investigation.125 A PCC can institute proceedings even ifthe Commissioner investigation did not conclude with a ‘breach’opinion, or did but the Commissioner decided not to refer the providerto the Director of Proceedings.

In all cases where the Director institutes disciplinary proceedings, itwill be apparent to members of the tribunal that the Commissionermust 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 theCommissioner’s opinion on the issue before a disciplinary tribunalwas clarified at an early stage. In the first case in which the Medical Prac-titioners Disciplinary Tribunal dealt with proceedings instituted by aDirector,126 the Director submitted that the ‘finding of a breach bythe Commissioner’ created a presumption of professional misconduct.The tribunal rejected this view. It pointed out that the question ofwhether particular conduct was in breach of the Code was separatefrom the question whether that conduct amounted a disciplinaryoffence. As it stressed in a later case, ‘a breach of the Code does not

121 HPCA Act 2003, ss 86-88.122 HPCA Act 2003, s100. Decisions of the HPDT are available at ,http

://www.hpdt.org.nz..123 See HPCA Act 2003, ss 68, 71 - 83.124 See eg Breeze 196/OT/08/97P (HPDT).125 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, seeMr S 188/Psy/08/86P (HPDT); see similarly Mary Elizabeth Casey 344/Mid/10/144 (HPDT).

126 Dr Nealie 28/97/16D (MPDT).


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necessarily constitute a professional disciplinary offence’.127 Sometimesthe tribunal invoked the Code as one relevant standard,128 but in thegreat majority of cases (even where proceedings had been instituted bythe Director), the Code was not mentioned in the Medical PractitionersDisciplinary Tribunal’s decision. The fact of the Commissioner’s inves-tigation was mentioned very occasionally; a Commissioner’s opinionnever.

Since it was created, the HPDT has continued the Medical Prac-titioners Disciplinary Tribunal’s approach to the relevance of theCode, and Commissioner opinions, to the task of determining ques-tions of professional misconduct.129 This is illustrated by the 18HPDT cases in which the Director of Proceedings has brought acharge of professional misconduct against a medical practitioner (fol-lowing a Commissioner’s breach opinion and referral). In only threeof these 18 cases has the HPDT’s decision included any referenceto the Code, and in none has there been any reference to a Commis-sioner opinion. The three decisions that did refer to the Code allinvolved issues of ‘informed consent’. Even in that context, the rel-evant provisions of the Code were not carefully analysed. Theywere simply included with quotations from codes of medical ethics,Medical Council statements, and common law cases, on the basisof which the HPDT distilled various ‘elementary propositions’about informed consent.130

A similar pattern is apparent in HPDT decisions involving other typesof health practitioner. Of the 28 HPDT cases in which the Director hasbrought charges of professional misconduct against registered healthpractitioners who were not medical practitioners, only four of thedecisions have included any reference to the Code. In three (two ofthem involving informed consent),131 Code provisions were quotedalong with other relevant standards.132 In the fourth, a Code provision

127 Dr O 153/00/66D (MPDT).128 Eg M 04/118D (MPDT) at [66] - [67], [76].129 A contributory factor may have been that the highly-regarded medical

lawyer (Dr David Collins, QC, and now Solicitor-General) who was Chairof the Medical Practitioners Disciplinary Tribunal became the first Chairof the HPDT and served in that capacity until August 2006.

130 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].

131 Dr D 19/Den05/05D (HPDT) (Code of Rights, NZ Dental Association Codeof 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).

132 Samiyullah 169/Phys08/90D (HPDT) at [18] and [19] (Code cl 2, rt 2 and rt4(2) quoted).


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was simply mentioned in passing.133 The HPDT decisions have notthrown any light on the interpretation of the Code.

After more than six years, and 149 HPDT decisions dealing withissues of liability, there have been only five references to a Commissionerinvestigation, and not one to a Commissioner’s opinion. When decidingabout professional misconduct, the HPDT has never placed any weighton a Commissioner opinion that there was a breach of the Code. Therehave in fact been only three decisions of disciplinary tribunals that havereferred, either explicitly or implicitly, to any opinions expressed by theCommissioner. In two of them the tribunal went out of its way to rejectthe Commissioner’s criticism of a health practitioner.134

Unlike the HRRT, the HPDT is not in the business of determiningwhether there has been a breach of the Code. Its focus is on the differentissue of whether any of the grounds for professional discipline – mostcommonly, professional misconduct – have been established. In thisthe Code plays only an occasional and very minor role; the Commis-sioner’s opinion none whatever.

The most striking consequence of the Code of Rights and the HDCAct (with its ‘low level’ means of resolving complaints), along withlegislation providing for competence reviews,135 has been the dramaticreduction in the number of cases proceeding to discipline.136 Whilethe changes mentioned here do not provide a full explanation of thisstriking change, they go a long way towards doing so.137 There is nolonger a need for disciplinary proceedings to trigger a review of a

133 Robertson 130/Mid/07/63D (HPDT) at [22] (passing reference to cl 3) andsee also at [23.2].

134 O’Flynn 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 dis-ciplinary offence itself: Stubbs 316/Med 09/113D (HPDT), paras 16, 17,90.)

135 See now HPCA Act 2003, Part 3. However, in the case of medical prac-titioners, legislation that came into effect on the same day as the Code ofRights already provided for competence reviews as an alternative to disci-plinary proceedings: see Medical Practitioners Act 1995, Part V.

136 In the three calendar years before that in which the Code and the MedicalPractitioners Act 1995 came into force (ie 1993-1995), an average ofapproximately eighty-four medical disciplinary charges were received bythe relevant tribunal each year. The number fell sharply to an average ofnineteen in the three calendar years after the Code and the Medical Prac-titioners Act 1995 came into effect (ie 1997-199). In the most recent threecalendar years (ie 2008-2010), an average of eight disciplinary chargesinvolving medical practitioners were received by the relevant tribunal eachyear.

137 See generally DB Collins and CA Brown, ‘The Impact of the CartwrightReport Upon the Regulation, Discipline and Accountability of Medical Prac-titioners in New Zealand (2009) 16 J Law & Med 589-613.


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practitioner’s competence or to ensure an independent investigation of apatient’s complaint.

VII. COMMISSIONER OPINIONS: THEORY V REALITY

As was explained earlier, once the Commissioner has concluded that aprovider was in breach of the Code, the options available to the Com-missioner are fairly limited. They involve only reporting, recommend-ing, and referring.138 The Commissioner cannot discipline a provideror provide any remedy for a consumer. The Commissioner cannoteven institute legal proceedings against an errant provider. The Commis-sioner could therefore be seen as a paper tiger, as ‘a man-o’-war withoutguns’.139

It has been said that the Commissioner ‘has no authority to take anyaction affecting . . . providers’ rights or liabilities’.140 However, it is onlywhen the Commissioner has carried out a formal investigation, and con-cluded with a breach opinion, that a consumer has the legal (if hardlyever exercised) right to sue the provider for breach of the Code.141

And unless, following a breach opinion, the Commissioner refersthe provider to the Director of Proceedings, the Director cannot insti-tute disciplinary or civil proceedings against the provider.142 So theoutcome of a Commissioner investigation is not entirely withouteffect on the legal rights and liabilities of consumers and providers.143

Nevertheless, its legal significance does not begin to comparewith that of (say) a relatively lowly official who, having reviewedthe law and facts, decides that someone is entitled to a socialwelfare benefit.

Were the Commissioner’s opinion of greater legal significance, likethat of a social welfare official, a right of appeal would almost certainly

138 HDC Act 1994, s45(2).139 This is the expression that is often quoted in connection with the first British

official in New Zealand, the pre-annexation British Resident, James Busby.140 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 vGarrett (2008) 19 PRNZ 144, para 24 per Dobson J.

141 Nevertheless, where providers have been in breach of the Code (and, indeed,occasionally when they have not) providers have sometimes made an exgratia payment by way of ‘settlement’ to an aggrieved consumer, followingnegotiations conducted by the consumer’s lawyer.

142 HDC Act 1994, s 49(1)(a).143 In a good many cases, however, civil proceedings could be instituted in neg-

ligence (or for breach of fiduciary duty), if mental but not physical injurywas caused (or if exemplary damages were a possibility): see eg L v Robin-son [2000] 3 NZLR 499 (HC). Many of the circumstances in which theHRRT has awarded damages are ones where a remedy might well havebeen 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 prob-ably added to the enormous weight that is in practice given (except bythe relevant tribunals) to Commissioner opinions that the Code hasbeen breached. For providers, professional groups, and the widerpublic, the Commissioner opinions seem to count for at least as mucha High Court judgment. Media, providers, and the wider publicappear unaware of the very limited legal consequences that flow froma Commissioner opinion, or that they are reached by a process thatwould not be thought acceptable with the most minor criminalcharge. As there is no right of appeal, Commissioner opinions have a fin-ality, and seeming authority, that High Court or Court of Appealdecisions often lack.145 When Commissioner opinions are released(often in a carefully media-managed way) there is not the scope thereoften is with judicial proceedings to say that an appeal is under consider-ation, with the implication that the decision could well be wrong.

Not being a judge or a tribunal chairperson, and having a statutoryduty to make public statements about matters affecting the rights of con-sumers,146 the release of a Commissioner opinion has often beenaccompanied by much greater publicity than are most judgments ofthe Court of Appeal or even the Supreme Court. The matters the Com-missioner chooses to investigate are often those that are, in every sense,of public interest.147 If several investigations raise similar issues, andlessons can be learnt from them, the opinions will sometimes be releasedat the same time, to increase media and professional impact. The Com-missioner’s office has staff who are experienced in making prior arrange-ments with media outlets; so the release of an important opinion is

144 The fact that it is expressed as the Commissioner’s ‘opinion’ would not havebeen an insuperable barrier: it could be re-expressed as a determination or afinding (as it was, in effect, in a single instance in the HDC Amendment Act2003, s 15, substituting new paragraphs into s 51). Note also the occasionaluse of ‘opinion’ in respect of the High Court (eg Human Rights Act 1993, s122(1)) or a Tribunal (eg Privacy Act 1993, s 66(1)(b)), and an opinionbeing referred to as a determination (Privacy Act 1993, s 78(1)(2)).

145 There has only been one reported application for review of a final HDCopinion: Stubbs v HDC (see n 140, above). As it had the consequence of‘outing’ the practitioner whose name would not in the ordinary course ofevents have been disclosed, a rash of applications seems unlikely. Further-more, the judge said that the tenor of the legislation suggested it was nota situation where ‘hard look’ judicial review was appropriate.

146 HDC Act 1994, s 14(1)(c).147 Many of the Commissioner opinions are available online, in anonymised

form, at http://www.hdc.org.nz/decisions-case-notes/commissioner’s-decisionsThe Office of the HDC published (in hard copy form) a compendium of Com-missioner opinions in 2005 and another in 2010: Health and Disability Com-missioner Case Notes 2000-2004 (2005), Health and DisabilityCommissioner 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 Commis-sioner being interviewed for key radio and television programmes.The first two Commissioners had a much greater public profile thandid any judge during their years in office (1995-2010).148 This profilecontributed to Commissioner opinions being taken much more seriouslythan their technical legal standing, or the process by which they werereached,149 could be said to explain.150

There is, therefore, a striking contrast between the technical legalstatus (and, for the most part, legal inconsequence) of a Commissioneropinion and the way in which Commissioner opinions are in fact per-ceived, both by individual providers and consumers and by the widerpublic.

VIII. A HOSTILE ENVIRONMENT?

In much of the English-speaking world (and quite possibly elsewhere), itis not uncommon for medical professional bodies to see their membersas uniquely disadvantaged and under siege.151 Nevertheless, it wassomething of a surprise when, in 2002, the Board of the NewZealand Medical Association characterised New Zealand’s medico-legal environment as ‘a hostile one’, 152 or when, a couple of years

148 For example, during the years 2000-2010 the Commissioner Ron Patersonwas mentioned on Radio New Zealand on 353 occasions; the ChiefJustice Sian Elias on sixty-two occasions. (Information from NewztextPlus database, available via Knowledge Basket.)

149 For understandable reasons, at the investigation stage providers do not haverights that are usually regarded as essential in judicial proceedings (eg toappear before the ultimate decision-maker and to cross-examine witnesses).A Commissioner’s choice of expert, from amongst those nominated andwilling to serve, can be extremely influential (and, in practice, very difficultto challenge).

150 Only a very small proportion of the population would have been aware thatthe second Commissioner was an extraordinarily able lawyer, with abilitieshoped for (but, in a New Zealand context, not always to be found) at HighCourt level or above. Most would also have been unaware of the extent ofhis knowledge about health law, ethics, and policy, or the regard in whichhe was held by his closest colleagues. So these factors cannot be taken toexplain the significance accorded his opinions, much less those of his prede-cessor and the Deputy Commissioners, by consumers and providers and inthe media.

151 Dr Marie Bismark, in her impressive Harkness report-back lecture ‘Nogreener grass: A comparative analysis of no-fault compensation in NewZealand and medical malpractice litigation in the United States’ (deliveredin several centres in New Zealand in July 2006), provided quotationsfrom doctors or their representatives in the United Kingdom, the UnitedStates, and Australia, as well as New Zealand, in which their respectivemedico-legal environments were perceived as being particularly hostile.

152 ‘NZMA Policy: Medico-legal peril’, adopted by the NZMA Board, 8February 2002.


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later, the Medical Protection Society (MPS) claimed that ‘New Zealandcontinues to be one of the most hostile medico-legal environments inany of the places in which MPS operates’.153

Given that since the mid 1970s it has rarely been possible to sue NewZealand doctors for professional negligence,154 and that the number ofmedical disciplinary proceedings had dropped dramatically after themid-1990s,155 such claims seemed extraordinary. However, they doindicate how very seriously doctors regard inquiries by the HDC andby others,156 as there is no other aspect of New Zealand’s legal environ-ment that explains its being characterised as hostile to medicalpractitioners.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 itcan be particularly stressful, even if (as is usually the case with theHDC) it does not lead to a breach opinion. The names of errant prac-titioners are hardly ever divulged on the Commissioner’s website or inmedia releases,158 but their peers sometimes learn of an investigationand of a Commissioner’s breach opinion. Occasionally aggrievedpatients will provide the practitioner’s name to the media. Furthermore,many people working in the health and disability sector place high

153 Medical Protection Society Annual Report, quoted in Ross Howie, ‘Doctor-bashing’ (2005) 118 N.Z. Med. J. No 1216.

154 For the current provision, see Injury Prevention, Rehabilitation, and Com-pensation Act 2001, s. 317, and note also HDC Act 1994, s 52(2).

155 See n 136 above, and also Collins and Brown, n 137 above.156 Before the shift from ‘medical misadventure’ to ‘treatment injury’ as a key

concept for the purpose of the statutory compensation scheme (see InjuryPrevention, Rehabilitation and Compensation Amendment Act (No. 2)2005), it was often necessary to investigate whether a doctor had been neg-ligent; furthermore, there was mandatory reporting of such findings(although very rarely did they lead on to disciplinary proceedings). Under-standably, these requirements would have affected some doctors’ perceptionof the legal environment.

157 For many decades prior to 1997 (when the law was changed by the CrimesAmendment Act 1997), medical practitioners, along with everyone else,could be convicted of manslaughter if their (not necessarily gross) negligencecaused someone’s death. Several were prosecuted prior to the law beingchanged, but this cannot explain any perceived hostility of the legal environ-ment years later.

158 Very few individual providers have ever been named bya Commissioner or byaDeputy Commissioner. One who was named was a ‘massage therapist’ whocould be regarded as a sexual predator: as he was not a registered health prac-titioner, therewas no possibilityof alerting a relevant authority so his practisingcertificate could be withdrawn (06HDC09882, 06HDC09324,06HDC07873). Another was a surgeon who was a repeat offender withrespect to his ‘informed consent’ practice (09HDC01870). For the others, see98HDC17882, 07HDC03930, 08HDC08672, 09HDC01375. The currentnamingpolicy (‘Policy Document – Naming Providers inPublicHDC’) is avail-able at the Commissioner’s website: ,http://www.hdc.org.nz..


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importance on doing their best for those in their care, so an independentassessment that they have failed their patient can be devastating, even ifit does not become widely known.

There are significant reputational and other consequences for DistrictHealth Boards or (for example) private aged care facilities when a Com-missioner expresses the opinion that they have breached of the Code.159

In such cases it is now customary for a Commissioner to provide theirnames to the media. Nationwide publicity invariably follows.

A system in which few complaints lead to a formal investigation, inwhich the Commissioner does not have power to impose sanctions,and in which subsequent civil proceedings are the exception ratherthan the rule, might be thought to be one that need not be takenseriously. But that is not how those subject to that jurisdiction per-ceive it.

New Zealand medical practitioners could be regarded as beingespecially favoured, given that they can so rarely be sued. Certainlytheir professional liability insurance, or equivalent, is only a fractionof what it would be elsewhere.160 However, a negligence action thatleads to a confidential settlement (without any admission of liabilityand at no direct financial cost to the individual practitioner) is notalways as burdensome as an independent investigation carried out byor on behalf of a respected public official, with a widely distributedreport – and the possibility of disciplinary proceedings – to follow.

The New Zealand complaints system is no soft option, even thoughlegal proceedings rarely ensue.161 Claims of hostility are wide of the

159 Corporate providers usually come within the relevant statutory definitions 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 some-times also be liable in consequence of so-called ‘vicarious liability’ (seeHDC Act 1994, s 72).

160 In New Zealand, the maximum Medical Protection Society (MPS) subscrip-tion is NZD1506 pa – which, even at the current rate of exchange, is stillless than GBP750 (and was previously significantly less). To provide onecomparison: in the United Kingdom, MPS subscriptions are commonlyvery much more than in New Zealand. They range up to GBP59,470 pa(depending on specialty and earnings). Strictly speaking the MPS, like theMedical Defence Union (which is no longer active in New Zealand), isnot an insurance company; it provides only discretionary indemnity. SeeMedical Defence Union v Department of Trade [1980] Ch 82; Johnson vMedical Defence Union [2006] EWHC 321 (Ch). However, in practicethe MPS provides its members with the equivalent of the cover other pro-fessionals commonly obtain by way of their professional liability insurancecontracts.

161 Some indication of the seriousness with which HDC investigations areregarded, in particular by medical practitioners, is provided by the retentionof lawyers (including, on occasion, Queen Counsel) and time-delaying (ifusually unsuccessful) appeals to the Ombudsman about procedural issues.


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mark, but New Zealand’s medico-legal environment is by no means laxor undemanding. It is simply different.

IX. OTHER EXTRA-LEGAL CONSIDERATIONS

The New Zealand experience with a legislated Code and a Commis-sioner is not explicable simply in terms of the strengths and weaknessesof the Code and related legislation. There are other extra-legal factorsthat are very important, in addition to the above-mentioned use of themedia.

One is the size of the Commissioner’s budget. Funding is essential ifthe Commissioner is to be able to carry out the many statutory dutiesof the office.162 Unless a Commissioner is adequately financed, it isnot possible to ensure the provision of information about the Code, tomaintain an advocacy service, or to employ the staff required to assessand investigate complaints. The Commissioner’s office is financedfrom ‘Vote Health’, along with many other deserving and financiallyconstrained activities. The Commissioner’s necessarily limited budgetprovides a significant restraint on any temptation to carry out aformal investigation of every complaint where there is a legal entitle-ment to do so.

Another important ‘extra-legal’ consideration relates to the abilities,experience, and outlook of the Commissioner – which in turn has abearing on the calibre and approach of those who work for and withthe Commissioner.

The first Commissioner, Robyn Stent, was an accountant by training.Her previous involvement with the health sector had been brief and inan administrative capacity. As the first Commissioner she faced analmost impossibly difficult task. Some consumer groups had unrealisticexpectations of what a Commissioner could accomplish and were alsounenthusiastic about the appointment of someone who was notknown in their circles. Some providers (and most of all some medicalpractitioners) were hostile about the very idea of a Code and a lay Com-missioner. In the event, Commissioner Stent set up the office fromscratch and played the lead role in developing a Code that has stoodthe test of time. The ‘own initiative’ investigation she commissionedinto a major hospital163 was widely admired, and established the Com-missioner as a major player in the health sector. However, her handlingof complaints did not receive comparable plaudits. Handicapped

162 See HDC Act 1994, s 14 for the full list of duties of the Commissioner (by nomeans all of which have been mentioned here).

163 Canterbury Health Limited: A Report by the Health and Disability Com-missioner (1998) 278pp.


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(amongst other factors) by the inflexibility of the initial law relating toCommissioner investigations, Commissioner Stent was eventually over-whelmed by the tasks. At the end of her five-year term, she left officewith more than 600 open files, including more than 400 investigations(many of them long delayed).164 As she approached the end of herterm, Commissioner Stent reported that she felt unsupported and unap-preciated and was looking forward to returning to be ‘Robyn Stent,businesswoman’.165

In many respects, the contrast with her successor could hardly begreater. Ron Paterson was one of the outstanding law graduates of hisgeneration, who – by the time he became Commissioner – had manyyears of experience in teaching and writing about medical law. Healso had a long-standing interest in medical ethics and health policy,and while on leave from his university post had worked for a regionalhealth authority and for the Ministry of Health (on the final stages ofdeveloping the Code). Before becoming Commissioner, he was brieflythe Deputy Director-General of Health responsible for safety andregulation. Most importantly, he had a keen sense of proceduralfairness.

Despite the ability to master files, and write reports, in a fraction ofthe time it would take most others, Ron Paterson’s early years as Com-missioner were dominated by the backlog of files: he reported that attimes it felt like bailing out a leaking boat. Law changes provided signifi-cant relief, by providing for the appointment of Deputy Commissionersand for the exercise of much greater discretion in the handling of com-plaints. During his years as Commissioner, Ron Paterson put great effortinto establishing and maintaining good relations with consumer andprovider groups and with many individuals. He also communicatedvery effectively with the wider public by way of his numerous television,radio, and press interviews. Commissioner Paterson’s approach todealing with complaints and carrying out investigations was character-ised by his two oft-repeated slogans: ‘Learning not lynching’ and ‘Res-olution not retribution’. To the regret of many, after a decade asCommissioner he left to become Professor of Health Law and Policyat the University of Auckland.

The extremely high status that the Office of Health and DisabilityCommissioner came to enjoy in New Zealand was in large measure a

164 Ten years later, Commissioner Paterson left office with half that number ofopen files and approximately one-tenth as many uncompleted investigations(none as long-standing as many he inherited).

165 Donna Chisholm, Stent Bows out Bullied but Unbeaten, Sunday-Star Times,11 July 1999, C3 (where she was also quoted as saying that the Commis-sioner’s office is bullied from all quarters).


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reflection of the very high esteem in which Commissioner Paterson cameto be held, not simply within the health and disability sector but withthe wider public. It is not possible to evaluate the operation of theNew Zealand legislative scheme without taking account of the individ-uals at the heart of it. The new Commissioner has been in office for tooshort a time for any assessment to be fair or accurate.166 However,initial indications are that the work of the office will continue alongmuch the same lines as had become established when CommissionerPaterson left office in 2010.

X. A FORTUNATE EXPERIMENT?

If the New Zealand ‘experiment’ were to be assessed on the basis of theextent to which it has led to better outcomes for patients, and reducedthe numbers of avoidable mishaps, no clear conclusion could bereached. Sometimes the Commissioners have accepted a ‘systems’approach to medical mishaps and they have also been aware of thedanger of their investigations contributing to a blame culture.167 Fol-lowing an investigation a Commissioner has sometimes made rec-ommendations that have been accepted, not simply by the provider,but by other provider organisations.168 However, it not possible toreach firm conclusions about the extent to which the Code and Commis-sioner investigations have improved outcomes for New Zealand patients

166 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 atthe time of his appointment had been a Deputy Director-General ofHealth for more than five years. Thus far his media profile has been verymuch lower than that of his predecessors.

167 See Alan Merry and Mary Seddon, ‘Quality Improvement in Healthcare inNew Zealand. Part 2: Are Our Patients Safe – And What Are We DoingAbout It? (2006) 119 N Z Med J No. 1238. These quality improvementexperts commended the Commissioner on ‘a world-leading focus on addres-sing aspects of the system, which contribute to patient harm rather than onlyseeking to identify individual scapegoats when things go wrong’, but wenton to acknowledge that ‘we still have a long way to go’ in translating thisand another high-level initiative ‘into practical gains at the organisationalor facility level of the system’.

168 See eg the report on the Capital and Coast District Health Board(05HDC11908; 22 March 2007), in which the Commissionerrecommended that all District Health Boards review the case and reporton the safeguards in place to prevent a similar occurrence in their hospitals.All Boards duly complied. All but one of the Boards acknowledged that asimilar tragedy could occur in their hospital, and noted the steps beingtaken to mitigate that risk: see M Seddon, Safety of Patients in NewZealand 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 clearto what extent they are ones that would have occurred, even if some-times by a different route, in the absence of a Code and Commissionerinvestigations and recommendations.171

This is also true of the very great importance that has been accordednotions of ‘informed consent’, information disclosure, and communi-cation generally, in the past two decades. There has been muchgreater 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 develop-ment. However, by 1990 there had already been a major shift in evenprofessional opinion about such matters.173 The Code and Commis-sioner can be seen as reflecting this development rather than the causeof it.

If the New Zealand experiment were to be assessed in terms of theguidance it gives providers, it can be judged a partial success, but nomore. It features in many educational programmes, but by no meansall the information imparted will be retained. There is also the compli-cation that an exceptionally high proportion of New Zealand’s medicalworkforce has trained overseas. Most providers know of the existence ofthe Code, but few will know all of its provisions or could appreciatetheir legal import. Individual providers will often be aware of particular

169 Other New Zealand legislation with a bearing on patient safety includes theHealth and Disability Services (Safety) Act 2001 and the Health Prac-titioners Competence Assurance Act 2003.

170 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 willbe Peter Davis and others, ‘Adverse Events in New Zealand Public Hospi-tals’ Pt I (2002) 115 N Z Med J No. 1167, pp 1-9; Pt II (2002) 115 N ZMed J No. 1183, pp 1-11 (based on a study of 6579 patient admissions in1998). The New Zealand figures were within the same ‘ballpark’ as thosein similar studies elsewhere.

171 There are grounds for scepticism about the extent to which the data avail-able in Commissioner opinions can assist with the improvement of practicegenerally: see Sara Temelkovski and Kathleen Callaghan, ‘Opportunities toLearn from Medical Incidents: A Review of Published Reports from theHealth and Disability Commissioner’ (2010) 123 N Z Med J No. 1314,pp 1-12.

172 See eg Tim Dare and others, ‘Paternalism in Practice: Informing Patientsabout Expensive Unsubsidised Drugs’ (2010) 36 J Med Ethics 260-264(41% of Australian of oncologists surveyed would not inform patientsabout expensive unsubsidised drugs, but only 11.1 % of NZ oncologistswould withhold such information).

173 Eg Medical Council of New Zealand, A Statement for the Medical Pro-fession 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 J547, 549 (Medical Council ruling that Professor Bonham’s failure to insti-tute suitable standards concerning informed consent was disgracefulconduct).


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provisions, and sometimes Commissioner opinions, but the Code andopinions probably have their greatest impact on District HealthBoards and other institutional providers. Their risk managers oftenseek to ensure that the organisation’s practices are in keeping with theCode requirements and Commissioner opinions.

In one important respect, the New Zealand ‘experiment’ hasundoubtedly been a success. There is widespread awareness that patientshave rights under the Code, and that they have avenues for complaint ifthey are unhappy about what has occurred. There is scarcely a hospitalward or doctor’s waiting room in the land in which a poster about theCode has not been prominently displayed. The high public profile of thefirst two Commissioners also contributed to the widespread awarenessthat patients have rights and that there are avenues for complaint ifthose rights have been infringed.

Even in countries where an action in damages may result in substan-tial financial benefits for claimants, it is apparent that the motive forinstigating legal proceedings is often a wish to discover what has gonewrong, or the hope of ensuring that the same mistake is not madeagain.174 The Code and its associated legislation provide a meanswhereby, in relation to an extremely wide range of providers, patientscan have their concerns (expressed as complaints) considered, and aresponse provided, with the possibility of the matter being pursued ata higher level if they are not happy with the initial response.

The Code and associated legislation has contributed to a vast numberof matters being resolved to the mutual satisfaction, or at least accep-tance, of complainants and providers. Inevitably, any complaintssystem has very significant emotional and other costs for many ofthose involved.175 No less inevitably, the outcomes are not always wel-comed by all concerned. The New Zealand scheme seeks to mitigate thesome of the downsides of a complaints scheme (such as long delays andunfair or unhelpful publicity) and maximise its benefits.

The provision of a legislated Code of Rights has transformed NewZealand’s medico-legal environment. In contrast to the ‘experiment’that led to its introduction a decade and a half ago, New Zealand’sexperience with a legislated Code of Rights warrants its characterisationas a fortunate experiment.

174 See Marie Bismark and Edward A Dauer, ‘Motivations for Medico-LegalAction: Lessons from New Zealand’ (2006) 27 J Legal Medicine 55-70.

175 See eg Wayne Cunningham, ‘The Immediate and Long-term Impact on NewZealand Doctors Who Receive Patient Complaints’ (2004) 117 N Z Med JNo. 1198, pp 1-9.


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Documents

A fortunate experiment? New Zealand’s experience with a legislated code of patients’ rights. By Peter Skegg