Act and Code Review consultation

The Act requires the Commissioner to review the Act at least every five years, and the Code at least every three years. While regular review is important to ensure that the Act and the Code remain fit for purpose, conducting these reviews is significantly time-consuming and resource intensive. Furthermore, they haven’t resulted in substantive change. Previous Commissioners have consulted on this issue and have recommended that the timeframes for these reviews be amended to every 10 years, with the option of earlier reviews where necessary.

The Act also places different requirements on the Commissioner when reviewing the Act versus reviewing the Code. This is because the Act was written with the initial development of the Code in mind. The Act’s requirements for consultation on the draft Code are still in effect any time the Commissioner wants to recommend even the smallest revision. While broad consultation on any change is important, the level and timing of consultation required is incredibly resource intensive and can cause frustration for both HDC and its stakeholders. We think it would be helpful to update these sections of the Act to make them clearer, reflect a context where we are updating an existing Code rather than developing a new Code, and better align the requirements of reviews of the Act and the Code. 

The penalty for offences against the Act (s 73) is a fine not exceeding $3,000. Offences include obstruction, failing to provide information, or providing false or misleading information to the Commissioner. $3,000 is a very modest fine for the offences covered and provides little discouragement for those who choose to obstruct the Commissioner’s processes. Increasing the maximum fine to $10,000 would bring it into line with comparable offences under the Health Practitioners Competence Assurance Act 2003. 

The Act does not provide the Director of Proceedings with the power to require information to inform decisions about whether or not to issue proceedings. The Director often seeks information from providers, consumers, or third parties (for example, ACC) and relies on their cooperation to give information freely. The majority of submissions that have been received on this issue in previous reviews supported an amendment to enable the Director of Proceedings to require any person to provide information, up until the Director decides to issue proceedings.

The Act allows an ‘aggrieved person’ to bring proceedings against a health or disability service provider in the Human Rights Review Tribunal. The term ‘aggrieved person’ is not defined in the Act and has resulted in litigation. The High Court and Court of Appeal decisions have interpreted ‘aggrieved person’ as being restricted to consumers of health or disability services — for example, preventing access by family members of deceased consumers. We consider that this makes access to the Tribunal overly restrictive. The 2014 review recommended the substitution of this phrase for the phrase ‘the complainant (if any) or the aggrieved person(s) if not the complainant’. 

 In Marks v Director of Health and Disability Proceedings [2009] NZCA 151; [2009] 3 NZLR 108; the Court of Appeal left open one possible exception — fathers of a baby in utero and birth process — because the baby is not considered a consumer until after birth.

Section 43(1) requires HDC to advise specified persons about the results of an investigation as soon as reasonably practicable after the investigation is completed. Sometimes we cannot find the provider or consumer (likely owing to their relocation) despite our best efforts. Repeated efforts to try to track down people who are not contactable, or in some cases, who may even be actively avoiding us, are a waste of resources that could be better directed elsewhere. We think this section should require that we have made ‘reasonable attempts to advise’ or allow substituted service when we can’t find someone — for example, giving them notice via registered post, or through their social media account/s. 

HDC is subject to the requirements of the Privacy Act and the Official Information Act 1982 (the OIA). This means that HDC is required to undertake an assessment of every request for information held by the Office to assess whether release of that information is required. This is a complex and time-consuming task. Releasing information during the early stages of an investigation tends to favour providers (and their lawyers), who have greater familiarity with HDC’s processes during an investigation and may seek tactical advantages. 

The Privacy Commissioner has suggested that HDC should have a similar ability to the Privacy Commissioner’s office to withhold information during the course of an investigation while the investigation is ongoing, as this is an important safeguard for the integrity of a complaint investigation process. Section 206 of the Privacy Act 2020 requires current and former Commissioners and all staff past and present to maintain secrecy in respect of all matters that come to their knowledge in the exercise of their functions under the Act. However, it gives the Commissioner the ability to disclose any matter that they consider necessary for the purpose of giving effect to the Act. We support a similar amendment being made to our Act.

Right 7(6)(c) requires that informed consent must be in writing if the consumer will be under general anaesthetic. This is because this form of sedation has a significant impact on a person’s ability to make or remember decisions. However, there are other forms of sedation that would have the same or substantially similar impacts — for example, where a combination of a painkiller and sedatives are used to help a patient cope with unpleasant or painful procedures. We propose changing the Code to capture those situations to ensure a more consistent application of this Right.

Right 7(6)(d) of the Code requires written consent where there is ‘a significant risk of adverse effects on the consumer’. In practice this has been understood to relate only to situations where there is significant risk of serious adverse effects. We therefore propose changing the Code to reflect this understanding. 

Right 9 (Teaching and Research) extends all the Rights under the Code to situations where ‘a consumer is participating in or it is proposed that a consumer participates in, teaching and research’. These terms are not defined under the Act and the definitions provided by the Code, as set out below, are unhelpfully broad: 

• ‘Teaching’ includes training of providers; and 
• ‘Research’ means health research or disability research.

Providers and others with an interest in teaching and research have told us that it is difficult to know when the Code applies. We’ve been told that the lack of clarity is often a barrier to activities that ultimately would benefit people and improve service quality. For example, we’ve been told that some providers and researchers are reluctant to undertake retrospective research at a population level where it is impossible to get informed consent for fear of breaching the Code. We are also aware of situations where the Code does apply but people have come to believe that it doesn’t. 

We want to hear your views on how to best to clarify the definitions of teaching, and of research, including what factors should be taken into account for determining when the Code should apply.