"Fair, simple, speedy and efficient" : natural justice and the New Zealand health and disability commissioner - the first five years

Abstract

This thesis is written by a midwife and lawyer who strongly supported the establishment of the Health and Disability Commissioner. With the enactment of the Health and Disability Commissioner Act 1994 ("HDCA") a new complaints jurisdiction was established. Midwives, like all other health providers became subject to the requirements of this Act. I was appointed to assist and defend employed and self employed midwives from all over New Zealand. These midwives worked in the community and in hospitals. My work also encompassed other jurisdictions, including the professional disciplinary bodies, the Coroners' Courts, the medical misadventure unit and Reviews, the High Court, and other Commissioners.

My role provided a unique opportunity to follow the initial development of the Office of the Commissioner. I was often closely involved in the HDCA complaints process and saw all documentation, correspondence, and opinions generated between the Commissioner, her Office and the midwife for whom I acted. I was able to observe the internal processes of complaint, investigation and prosecution and to see firsthand the impact of these on the profession of midwifery and on individual midwives, often over a period of several years. Inadvertently I began to gather material as a participant/observer as the early midwifery HDCA cases were processed .. I soon observed with growing concern that many of the legal protections, usual to investigatory bodies, such as the Office of the Ombudsman or that of the Privacy Commissioner or the Nursing Council of New Zealand, had not been built into the HDCA processes.

A further concern was a growing fear of the Commissioner amongst midwives. This fear did not arise because the midwife was worried that someone might lodge a complaint against her, as midwives recognised the right of consumers to make complaints. Instead this fear seemed grounded in a midwifery view that the Commissioner would not follow a fair process. As an original supporter of the HDCA, I felt increasingly worried that health professionals were losing confidence in the Office so soon after its inception, and that they were questioning the integrity of the Commissioner. In time I began to speak out and write about my concerns in the hope that this would lead to change·1 I also inadvertantly began to gather information and note where shortcomings in the processes of the Commissioner occurred. I knew that some procedures were established in the Health and Disability Commissioner Act 1994 ("HDCA") but that others such as notice and disclosure were left largely to the discretion of the Commissioner. In other jurisdictions, fundamental protections, tested in the Courts, gave protections to health practitioners but in the Commissioner's jurisdiction these protections were not in place. I could only base my observations on my own midwifery clients, but I considered that in many cases fair procedures were not being followed. This caused great distress to my clients and increasing frustration to me as a lawyer.

I began to research and read widely about natural justice, fair procedures and fair processes and identified the fundamental requirements of these concepts. I reviewed the history of the Commissioner and closely studied the legislation and case law to determine whether the Commissioner was bound to give effect to the principles of natural justice. I also closely analysed the HDCA and the midwifery cases to identify whether the procedures had been fair. I confined my research to the term of the first Commissioner.

This thesis describes what I discovered.