Healthcare failures: Former commissioner fights for law change to help give families justice

A baby boy dies after dropping on the hospital floor at birth. An 8-year-old son dies after a doctor misses his blindness. A couple believe osteopathic treatment killed their unborn baby.

These are just a few examples of grieving families who feel powerless and stripped of having a voice, and is why advocates are fighting to get a law changed.

If someone is killed or harmed by healthcare failures, they or their families can’t sue in New Zealand.

Instead, they can complain to our country’s only patient watchdog – the Health and Disability Commission (HDC). However, only a small per cent of cases are investigated and often justice is lost.

Advocates and top scholars have been pushing for a right of appeal pathway to be introduced into the HDC system, an intervention the current commissioner isn’t opposed to but the Ministry of Health say isn’t needed.

This morning, former Health and Disability Commissioner Ron Paterson is the latest to give a oral submission to the Health Select Committee (HSC), which is a group of MPs deciding whether to take this public plea for a law change to Parliament.

Paterson’s submission comes after patient advocates Charlotte Korte and Renate Schütteand law professor Jo Manning in October presented their pleas to the HSC, followed by the current commissioner Morag McDowell last month.

READ MORE:Baby death: Mum traumatised after newborn boy drops on hospital floor

Speaking to the Herald, Paterson said the right of appeal is “a human right”saying patients shouldn’t be discriminated against.

“When I was commissioner, it was proposed in around 2002 to open up access to the human rights review tribunal and there was a grave concern then, remember the system was still pretty new, about floodgates and so it only opened a little bit.

“Those fears never came to light … now 17 years on I think there is a compelling case.”

READ MORE: Exclusive: Fighting for patients killed after failed healthcare – law change proposed

He said the time was right for this reform.

“Back in the early days there was a great fear of creating an “overly litigious” system the HDC is alternative to bringing civil claims aimed to be fair, speedy and efficient.

“As an element of fairness, there needs to be more than one avenue.”

Key highlights from other HDC right of appeal submissions

• HDC is failing to protect patients and families from substandard health care, which is why it was set up in 1994.

• Chief Ombudsman Peter Boshier was highly critical of the HDC process affecting timeliness and recommended a clearer distinction between preliminary assessments and investigations.

• There is an “extraordinary” increase in NFA (no further action) decisions – about 55 per cent (on average more than 1000 a year) result in NFA. Those decisions are not published, so transparency is lost.

• Patients who have suffered serious harm or families who have lost loved ones have to mobilise themselves to undertake in-depth research because no one else sees the need to do so.

• Health and Disability Commissioner Morag McDowell said the proposal was complex and required careful consideration.”I would strongly support broad public and sector consultation on any proposed changes, to ensure the effects of them are well understood and to avoid unintended consequences for consumers,” she said.

• The Ministry of Health has said in its written submission: “[We] believe that the ability to raise concerns with the Office of the Ombudsman about the Health and Disability Commissioner’s decisions, along with judicial review, functionally acts as a right of appeal for complainants, and those that are subject to complaints.”

Paterson said the ministry’s response was weak and doesn’t address the substance of the issue.

“Hats of to Ombudsman for the decisions that were publically released in May this year but one has to note that in the year to June 2020 only three of 61 requests resulted in investigation so that is not enough. Speaking as a former ombudsman, I don’t think you can reply on that mechanism.”

In 20 years, the percentage of complaints investigated by the HDC dropped from 40 per cent in 2001 to 4 per cent in 2019.

“Patients deserve a better deal than this, especially since there is no ability to take a medical negligence action for damages…many people have lost trust in he system,” Schütte, who was severely harmed by surgical mesh, said in October.

READ MORE: Stillbirth tragedy: Couple believe osteopath treatment killed their unborn baby

A spokeswoman for Health Minister Andrew Little said in October that he couldn’t comment while it was before the Health Select Committee. The Herald approached the minister’s office for further comment yesterday and did not get a response.

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