As New Zealand’s ‘Health Watchdog’, the Health and Disability Commissioner (HDC) acts as an independent health ombudsman, serving as the initial recipient of complaints about health and disability services providers.
In a legal system where injured or otherwise aggrieved patients are effectively prevented from suing in court for malpractice due to the ACC legislation, the ability to complain to the Commissioner has taken on primary importance.
After ten years in the role, in which HDC became widely respected not only within the health and disability sector but by the wider public, Ron Paterson stepped down as Commissioner on 31 March 2010.
Anthony Hill, a lawyer who had spent the previous 15 years working at the Ministry of Health in various roles, including the last six years as a Deputy Director-General of Health, was appointed as the new Commissioner following a selection process and began his term in July 2010.
Selecting a new Commissioner
As an “independent Crown entity”, it is ultimately the Governor-General who appoints the Commissioner, but the Minister of Health who recommends an individual for appointment.
There is no requirement for the position to be advertised or formal interviews to be held. However, both in 1994, when Jenny Shipley recommended Robyn Stent, and in 2000, when Annette King recommended Ron Paterson, the position was advertised and a final list of interviewees approved by the Minister.
In January 2000, Annette King chaired the interview panel herself, along with Associate Minister Tariana Turia, the Director-General of Health and a retired Court of Appeal judge. It is notable that no provider or consumer representative sat on the interview panel.
In stark contrast the interview panel that was convened in the selection of the current Commissioner comprised of the Director-General of Health, and three others nominated by Minister of Health Tony Ryall.
Pat Seymour, a lay member of the Nursing Council who has previously been involved as a member of hospital and health boards and sits on the National party’s Board of Directors.
Pamela Jefferies, the former Chief Commissioner of the Human Rights Commission and a former member of Wairarapa District Health Board.
Professor Des Gorman, a doctor and Head of the University of Auckland’s School of Medicine and Chair of Health Workforce New Zealand. He was also, at the time, a member of the Medical Protection Society (MPS) New Zealand Advisory Panel, a position that was declared.
An Appropriate Composition?
As with any quasi-judicial office, impartiality and independence is essential for HDC. The Commissioner must be seen to be independent of the interests of provider and consumer groups. The process for appointing the Commissioner should, therefore, be uncontaminated by even a perception of bias. Something that Minister King clearly understood in 2000.
Questions must, therefore, be raised regarding the composition of the selection panel for the new HDC. It clearly had a perception of bias with the inclusion of health provider representatives. Of particular concern is Professor Gorman’s involvement given his position on the MPS New Zealand Panel at the time. Indeed, it appears that Professor Gorman’s involvement on the selection panel for HDC coincided with him chairing one meeting of the MPS New Zealand Panel while Professor Alan Merry was on sabbatical.
The primary aim of MPS is to protect and safeguard the professional reputations of individual members and the professions to which they belong, by assisting doctors with specific legal problems that arise from their clinical practice and lobbying for doctors’ interests in the regulatory environment. In the New Zealand context, this includes advising doctors who have a complaint to the HDC against them.
While MPS is a UK based mutual society, with its head office and Council, which provides ultimate governance, based in the UK, the New Zealand Panel advises MPS on matters relating to its business in New Zealand.
As Professor Merry stated in a piece for MPS Casebook in 2009: “Given our unique medico-legal environment, this local input is very important, and the Panel’s advice is given great weight.”
Consequently, it is very difficult to see how any member of the MPS New Zealand Panel can properly sit as a member of a selection panel advising the Minister of Health on the suitability for appointment of an individual as HDC.
There was a clear conflict of interests and one must question Minister Ryall’s judgement in nominating Professor Gorman to the selection Panel despite the conflict of interests that he knew existed. His involvement compromised the independence of HDC.
This was further exacerbated by comments from MPS reported in New Zealand Doctor on 8 September 2010: “The Medical Protection Society is looking forward to a better relationship with the health and disability commissioner following the appointment of Anthony Hill to the role.”
A Suitable Appointment?
While there have been no suggestions that Anthony Hill does not meet the required statutory qualifications for HDC, disquiet has been expressed by some in the sector about the decision to appoint someone who has been a Ministry of Health official for the past 15 years, and thus may lackindependence from the interests of the bureaucracy. Similar concerns were raised in 2000 regarding the appointment of Ron Paterson, who was a Deputy Director-General of Health in the year before his appointment.
While Anthony Hill was at the Ministry for a significantly longer period of time than Ron Paterson, it is clear that holding a position at the Ministry of Health prior to appointment, in itself, does not indicate how successful a Commissioner will be.
Commissioner Hill has been in office for too short a time to make a fair or accurate assessment of how effective he will be. One notable aspect of Commissioner Hill’s tenure to date, however, has been his low media profile. Given that a great deal of the success of the Office has been related to the use of the media in the past, it will be interesting to see if this changes over the course of Commissioner Hill’s term in office.
However, in light of the above, one must wonder if New Zealand’s ‘Health Watchdog’ no longer has a bark, or worse, is now a Guard Dog for the medical profession.
Author information: Whistleblower Stuart McLennan worked at the Office of the Health and Disability Commission from March 2008 to December 2009. Worked at the University of Basel’s Institute for Biomedical Ethics. Email: email@example.com
Source : https://edoc.unibas.ch/29018/1/1._AWHC_Published_Version_SEPTEMBER_2011.pdf
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