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26. 3. 97
REPORT BY THE CHAIRMAN OF THE
STRATEGY AND RESOURCES COMMITTEE
12. CHRISTCHURCH HOSPITAL LIMITED
PATIENT INQUIRY RR 4860
| Officer responsible | Author |
| Legal Services Manager | Peter Mitchell |
| Corporate Plan Output: Legal Advice |
1. INTRODUCTION
The Committee had received a deputation from the Christchurch Hospitals Medical Staff Association seeking funding from the Council to assist that Association in preparing submissions on behalf of patients to the Commissioner's inquiry. At the meeting the question had been raised as to whether interested parties were entitled to be orally heard by the Commissioner and whether the Council should take any initiative in that regard.
This report will provide the background material sought and address the issues raised.
Firstly I believe it is useful to set out a brief chronological background relating to the present position with the patients' inquiry at Christchurch Hospital.
2. CHRONOLOGICAL BACKGROUND
| October 1994 | Parliament enacts the Health and Disability Commissioner Act 1994. |
| 1 July 1996 | The Health And Disability Commissioner (Code Of Health And Disability Services Consumers' Rights) Regulations 1996 come into force. |
| July 1996 | Christchurch Hospitals Medical Staff Association and Christchurch representatives of the New Zealand Nurses Organisation prepare a report entitled "Systems Failures Threatening Patient Safety at Christchurch Hospital". |
| September 1996 | This report forwarded to the Minister of Health. |
| 24 December 1996 | Christchurch Hospitals Medical Staff Association report entitled "Patients are Dying: A Record of System Failure and Unsafe Health Care Practice at Christchurch Hospital" sent to the Chairman of Canterbury Health, the Minister of Health and the Associate Minister of Health. |
| 1 February 1997 | Minister of Health publicly announces his decision to conduct an inquiry as a Commission of Inquiry under the Commissions of Inquiry Act 1908 into patient safety at Christchurch Hospital. |
| 5 February 1997 | Health and Disability Commissioner advises of her decision to hold an inquiry into patient safety and "generic systems issues" at Christchurch Hospital. |
| 7 February 1997 | Minister of Health announces that because of the Commissioner's inquiry he is suspending his inquiry because he believes that the cost and disruption of two inquiries is to be avoided. |
| March 1997 | The High Court hears an application by the Christchurch Hospitals Medical Staff Association and the widow of a patient who died in Christchurch Hospital seeking a review of the Commissioner's decision to conduct her investigation. |
| 12 March 1997 | The Court releases its judgment on that application. |
I will now consider the provisions of the Health and Disability Commissioner Act 1994, the High Court's decision and conclude with recommendations concerning this matter.
3. HEALTH AND DISABILITY COMMISSIONER ACT 1994
The purpose of this Act "Öis to promote and protect the rights of health consumers and disability services consumers, and to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights."
The Act establishes the position of the Health and Disability Commissioner and sets out the functions of that position.
The functions of relevance for present purposes are that the Commissioner is to--
(a) prepare a Code of Health and Disability Services Consumers' Rights;
(b) "investigate, on complaint or on the Commissioner's own initiative, any action that is or appears to the Commissioner to be in breach of the Code";
(c) to refer complaints or investigations on the Commissioner's own initiative to the Director of Proceedings for the purpose of deciding whether or not any further action should be taken in respect of any breach or alleged breach of the Code;
(d) to make recommendations to any appropriate person or authority in relation to the means by which complaints involving alleged breaches of the Code might be resolved and further breaches avoided.
With regard to (b) above the word "action" is defined in the Act as follows:
"in relation to a health care provider or a disability services provider, includes failure to act; and also includes any policy or practice."
The Act also provides for the appointment of one of the Commissioner's staff as a Director of Proceedings and I will refer to this person further below.
In accordance with the Act, the Commissioner drafted the consumers' rights Code referred to above and this was promulgated as the Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996 ("the Code") which came into force on 1 July 1996. The Code provides certain rights to consumers and duties on providers in relation to health care.
With regard to consumers, the Regulations provide that consumers have the rights specified in the Code such as the right to be treated with respect, the right to dignity and independence, the right to services of an appropriate standard, the right to effective communication and the right to be fully informed. Conversely, the health provider has a duty to inform consumers of their rights and to enable consumers to exercise their rights.
It is in respect of alleged breaches of the rights under this Code that the Commissioner will conduct her inquiry and make findings. From this perspective the Commissioner's jurisdiction is an investigation into breaches of the Code and this was one of the central issues which came before the Court. I will refer to this matter below.
The Act expressly states that it is a function of the Commissioner to investigate any action of any health care provider where that action is or appears to the Commissioner to be a breach of the Code, and the Commissioner may commence such an investigation either on complaint or on the Commissioner's own initiative. In the present situation the Commissioner has decided to commence her investigation on her own initiative.
The Act provides that the Commissioner must inform the health care provider of the Commissioner's intention to make the investigation, and must inform the health provider of the details of the complaint and the right of that person to submit a written response.
The Commissioner is also empowered at any stage of the investigation to refer the matter to an advocate for the purpose of resolving the matter by agreement between the parties concerned.
With regard to the procedure of such an investigation, the Act states that the Commissioner may conduct it in public or in private. The Commissioner can hear or obtain information from such persons as the Commissioner thinks fit, but that it is not necessary for the Commissioner to hold any hearing. The Act also states that no person shall be entitled as of right to be heard by the Commissioner.
Subject to these provisions the Commissioner may regulate her procedure in such manner as she thinks fit.
I would comment here that although a person does not have the right to be heard by the Commissioner, the Commissioner clearly has the power, if she wishes to do so, to grant hearing rights involving oral submissions by any person. I understand that at the present point in time the Commissioner has indicated that she is not prepared to grant such oral hearing rights.
In addition to referring the matter to an advocate referred to above, the Commissioner is also empowered to call a mediation conference in an endeavour to resolve the matter by agreement between the parties.
The Commissioner is authorised to pay out of her funds to those parties or those representatives an amount necessary to enable that party to be adequately represented at such a mediation conference and to any other person attending the conference, fees, allowances and expenses as if those parties were witnesses in a court. The Commission does not have a similar power to pay parties in respect to her own investigations.
In an investigation the Commissioner is given powers to require information from any person and to produce documents or things under their control and to issue summonses to be examined on oath. For persons who are witnesses to such an inquiry, they have the same privileges as if they were witnesses in a court.
If after having conducted the investigation, the Commissioner is of the opinion that any action was in breach of the Code, then the Commissioner may do a number of things :
(a) report her opinion to the health care provider with recommendations, including the recommendation that disciplinary proceedings be taken against any officer, employee or member of the health care provider;
(b) report her opinion and recommendations to any health care purchaser, health care professional adviser or any person she thinks appropriate;
(c) report to the Minister of Health;
(d) refer the matter to the Director of Proceedings for the purpose of whether or not the following action should be taken.
Where the Commissioner makes a recommendation to any person and no action is taken, then the Commissioner advises the complainant of the recommendation and may make such comments in the matter as the Commissioner thinks fit, and where appropriate transmit to the Minister of Health a report on the matter.
Where an investigation has been conducted in relation to a breach of the Code, then the Director of Proceedings is empowered to bring civil proceedings before the Complaints Review Tribunal (established under the Human Rights Act 1993) against the health care provider. Such proceedings can be brought on behalf of a class of persons and may seek the following remedies :
(a) A declaration that the action of the health service provider is a breach of the Code;
(b) An order restraining the health service provider from continuing or repeating the breach;
(c) Damages for pecuniary loss, loss of benefit or humiliation, loss of dignity and injury to the feelings of an aggrieved person.
4. HIGH COURT DECISION
In the hearing before the High Court there were a number of issues raised but in my view those can be reduced to two principal, although related, issues. These are :
(a) Whether the Commissioner's investigatory powers were sufficiently wide so as to provide a proper inquiry; and
(b) Whether she should have not taken any action but let the Ministerial inquiry proceed.
In its judgment the Court recorded that an earlier allegation of predetermination by the Commissioner was expressly abandoned.
The Court reviewed the provisions of the 1994 Act and noted that the Commissioner had the power to commence an investigation on her own initiative.
In this regard the Court stated :
"The power is to investigate any action of any health care provider when it is or appears to be in breach of the Code. The word "action" is defined so as to include a failure to act and also so as to include "any policy or practice". Thus any action in the literal sense, any failure to act and any policy or practice of the health care provider which is or appears to the Commissioner to be in breach of the Code may be the subject of investigation by her.
There was some debate as to how far the Commissioner could go into what were described as policy or management areas. The simple answer in my view is that the Commissioner may investigate any conduct of a health care provider which (a) can reasonably be described as a policy or practice; and (b) is or appears to be in breach of the Code. Power of investigation is not open-ended in the sense that the subject matter must fulfil the definition of the word "action" and must also be such that it is or appears to be in breach of the Code but, subject to those limitations, the power of investigation is not otherwise circumscribed.
It is neither possible nor desirable for the Court to go any further than that, much less to attempt to provide abstract examples of what would or would not be within the Commissioner's powers of investigation. One thing however can be said. Because of the fact that the word "action" includes any policy or practice, the Commissioner is not limited to investigating single or discreet incidents or happenings. She can investigate anything within the definition of "action" so long as it is or appears to be in breach of the Code."
The Commissioner has stated that she proposes to investigate "generic systems issues" and it was asserted at the Court hearing that because such issues were issues which predominantly came into being as a result of management actions occurring prior to 1 July 1996, then the Commissioner could not investigate such issues. This is because the Commissioner's investigation is based upon the Code which only came into force on that date. In respect of this matter the Court stated :
"It does not follow, however, that actions prior to 1 July 1996 are wholly irrelevant when it comes to investigations into alleged breaches of the Code. Ö An omission after 1 July 1996 to discontinue or amend a practice in force from prior to 1 July 1996 could be held to be a breach of the Code. It may be necessary to look at a period prior to 1 July 1996 in order to identify and trace the administration of the practice. That, in my view, would be perfectly permissible.
It is fair to say that a discrete and self-contained incident occurring prior to 1 July 1996 could not be investigated because it could never be regarded in itself as a breach of the Code. If, however, that incident is relevant, albeit occurring prior to 1 July 1996 to a subject matter which could be a breach of the Code, then while the incident per se could not be a breach of the Code, the Commissioner could still investigate it and take it into account in deciding whether there had been a breach of the Code post 1 July 1996."
The Court went on to state:
"In my judgement what the Commissioner has chosen to call "generic systems issues" are capable of resulting in breaches of the Code. The expression which the Commissioner has used is not one to be found in her Act but I presume that underlying the concept of generic systems issues lie the concepts of policies and practice found in the definition of the word "action". ÖIt is implicit from the material before me that the Commissioner is of the opinion that these generic systems issues either are or appear to be in breach of the Code."
With regard to the matter of the Ministerial inquiry, the Court noted that the fact there could be overlapping inquiries was implicit in the statutory framework when one looked at the Commissioner's powers together with the Minister's own powers in relation to investigation. The Judge stated that on the evidence before him he was not satisfied that the Commissioner had intended by her decision to bring about the suspension or abandonment of the Ministerial inquiry. He considered that the greater likelihood was that there would be some conjunction of the two inquiries so as to enable the Commissioner to look into matters from her point of view and the Minister to proceed on the basis of covering such additional ground as might be desirable and beyond the reasonable scope of the Commissioner's inquiry.
He noted that even if there was a likelihood that her inquiry would result in the suspension or abandonment of the Ministerial inquiry, she was an independent statutory body charged by Parliament with investigating certain matters and the fact that her decision to investigate those matters may lead to a decision by another person not to conduct an investigation, was entirely collateral.
The Court stated:
"In my judgment on the balance of probabilities the Commissioner's decision was based on the view that was her responsibility under her legislation to conduct an own initiative inquiry (sic) into such matters at the Christchurch Hospital emerging from the material before her which either were or appeared to be a breach of the Code. In short I am left unpersuaded that the Commissioner's decision to investigate was motivated by a desire to keep the Minister off her turf.
In view of the public interest generated about the alleged problems at Christchurch Hospital, and in view of the material which was in her hands and in further view of the Commissioner's statutory purpose, it would have been surprising indeed if the Commissioner had decided not to exercise her statutory powers. Certainly the Minister's indication that he was going to set up an inquiry was a complicating factor for the CommissionerÖbut I am wholly unpersuaded that the Commissioner's decision was motivated by any collateral or improper purpose. ÖFor all the Commissioner knew the Minister might well have continued with his inquiry either in its originally intended form or perhaps more likely in an amended form following the announcement of her decision to hold her own inquiry."
In respect of her decision to hold her investigation the Commissioner made the following points to the Court:
(a) Her investigation would not be limited by specific terms of reference;
(b) As the investigation progressed, further matters could be incorporated into her investigation if necessary - so that her inquiry might have greater flexibility than the Ministerial inquiry;
(c) Her power to make recommendations to refer matters to a Director of Proceedings and action could be taken in either the Complaints Review Tribunal or a disciplinary tribunal;
(d) Under her procedures specific remedies are available at least for consideration from an investigation;
(e) Her jurisdiction operates independently of the Government in the policy, funding, management and provision of health services.
In conclusion, the Court referred back to the Commissioner's powers to investigate "actions" and breaches of the Code, and stated :
"That seems to me to give the Commissioner ample scope to investigate the current circumstances at Christchurch Hospital and such circumstances as have occurred or arisen since 1 July 1996. To the extent that circumstances or events which occurred before 1 July 1996 are relevant to whether there has been a breach of the Code they may be considered, although not in themselves amounting to any such breach. It is for the Commissioner to determine whether such earlier events or circumstances have the necessary relevance Ö
The Commissioner's powers are obviously narrower than they would have been if she had been able to go back in time without limitation. I do not wish to sound callous but I think it should be said that nothing can change events or circumstances in the past. The primary public utility in any inquiry must be in examining whether present circumstances at the Christchurch Hospital are such that health consumers have any reasonable grounds for concern. Thus the principal advantage of the Commissioner's investigation will lie in such comfort as she may give to health consumers if all is well and such recommendations and other actions which she may make or take if all is not well.
If it is thought necessary to investigate discrete events or circumstances which occurred prior to 1 July 1996 and which have no relevance to matters which the Commissioner is investigating as apparent breaches of the Code after 1 July 1996, the only remedy is for the plaintiffs or anyone else affected to persuade the Minister that there is some public utility in investigating those matters in addition to the matters which the Commissioner is entitled to investigate. Whether there is such public utility is not for me to say."
5. GENERAL ISSUES
There are a number of issues which arise out of the deputation by the Medical Staff Association to the Strategy and Resources Committee.
(a) Firstly, the Association has sought funding from the Council towards the cost of setting up a support framework to assist patients and their relatives in preparing their submissions.
S.598(4)(a) of the Local Government Act 1974 empowers the Council to make grants of money "Öto any organisation or group or body of persons (whether incorporated or not) whose object or principal object is conserving or promoting the welfare of the community or of any other members of the communityÖ"
The deputation was seeking financial assistance from the Council on behalf of the Christchurch Hospitals Medical Staff Association which is an unincorporated body of persons.
My view is that this Association does not have as its sole object or principal object the conservation or promotion of the welfare of the community or any members of the community. The Association is primarily, as its name suggests, a staff association and for that reason, in my view, the Council is legally unable to provide the financial assistance that the Association seeks.
The Council could legally make a grant to an organisation such as the Community Law Centre for them to provide assistance to assist patients and relatives.
With regard to the issue of financial assistance, I believe the Association could be advised to approach the Minister of Health with a view to the Crown providing financial assistance to those persons who will be actively involved in the patient inquiry.
Although Canterbury Health Limited is a Crown Health Enterprise, it is funded by the Crown. The inquiry has arisen out of events that have occurred at the Hospital and the Commissioner's investigation will also indirectly be funded by the Crown. In the situation where the investigation will probably include looking into patient deaths that have occurred at the Hospital, then in my view it could well be argued that it is appropriate for the Crown, through the Minister of Health, to properly resource those persons who wish to take an active part in the inquiry.
I understand that the Crown resourced the legal representation for those families involved in the Cave Creek Commission of Inquiry and as loss of human life has occurred at Christchurch Hospital, which will probably be part of the Commissioner's investigation, then in my view it is entirely appropriate that the Crown should provide similar financial assistance to the families of those patients.
(b) Secondly, there is the issue of the Council at this stage requesting the Minister of Health to reactivate his suspended inquiry.
This would be on the basis, as referred to by the Court in its decision, that perhaps the Commissioner's inquiry would not be as wide-ranging as the Minister's inquiry.
At this stage, I do not believe there is sufficient information for the Council to say that the Commissioner's inquiry would, on its own, be inadequate. As the Judge has noted in his decision, the Commissioner's inquiry only has jurisdiction after 1 July 1996, but as part of her investigation she can refer to events which precede that date.
The Minister of Health has clearly formed the view that there is no point in having two inquiries running simultaneously and creating additional expense both for the Crown and for those who wish to take part in such an inquiry.
I believe at this stage that the Council should not seek to have the Minister reactivate his suspended inquiry.
(c) Thirdly, the deputation to the Strategy and Resources Committee was concerned that the Commissioner would only permit submissions to be made in writing, and that there would not be the opportunity for oral submissions. This is an issue which I believe could be taken up by the Council with the Commissioner.
As I have noted above, the matter of hearing rights is clearly one for the Commissioner and the Act expressly provides that there is no right for any party to be heard so that it cannot be argued because she is denying oral submissions, she is breaching the rules of natural justice. However, for a number of reasons I believe that it would be appropriate for oral submissions to be made available in the present situation. Those reasons are :
(i) This may possibly be the only inquiry to be held into the patient safety issues at Christchurch Hospital and therefore it is important that the process be correct and be seen to be fair;
(ii) The investigation will clearly deal with a sensitive subject involving the loss of human life and where family members are feeling deeply aggrieved;
(iii) Many people would feel more comfortable in making oral submissions and would find it very hard to express feelings of grief and anguish on paper;
(iv) If oral representations are denied and the Commissioner finds that there are no "problems" with hospital management, then I expect there will be residual frustration by those who wished to take part that they did not have the opportunity to be heard orally;
(v) The Commissioner has clearly stated that she herself wishes to look at "generic systems issues" and given that intention, in my view the only appropriate way that that can be carried out is through allowing oral submissions;
(vi) Although the Commissioner has an obligation under the Act to carry out her investigations with "due expedition" she herself has the clear power to regulate her own procedure and legally could provide for oral representations if she wished to do so.
On this issue I believe if the Council wished to do so then it could take the matter up with the Commissioner and request her to allow for oral submissions from those who wish to address her.
Recommendation: 1. That the Council support the Christchurch Hospitals Medical Staff Association in requesting the Minister of Health to provide funding to those persons who wish to take an active role in the inquiry to be held by the Health and Disability Commissioner.
2. That the Council write to the Health and Disability Commissioner requesting that she allow persons who wish to take an active role in her inquiry to be given the opportunity to make oral submissions.
Chairman's
Recommendation: Not seen by Chairman.