Barriers to justice in New Zealand’s Health and Disability Complaints regime: Recent Critiques (V)
Joanna Manning1, Faculty of Law, University of Auckland Auckland 1Faculty of Law, University of Auckland, Auckland New Zealand
Abstract
With a no-fault compensation regime which bars damages actions against health practitioners and a “low blame” complaints regime, NZ’s unique medico-legal arrangements have been the envy of thought leaders the world over. Great hopes were held for new complaints regime. Yet, after 27 years’ experience of NZ’s complaints regime in health, a far less rosy picture has emerged. Put simply, as currently configured, the complaints regime is incapable of effecting justice for the parties, complainants and providers alike, in a good number of cases. In these cases, it is unable to fulfil its legislative purpose of achieving the “fair, simple, speedy and efficient resolution of complaints.” Criticism of exactly these issues, which lie in inadequate legislative design of the system, by courts, the Chief Ombudsman and commentators are continuing to mount. As well as legal remedies, political pressure for legislative reform of the system has been applied, in the form of a petition to a parliamentary select committee seeking enactment of a right of appeal from adverse Health and Disability Commissioner (HDC) decisions. A right of appeal would go some distance towards fixing key injustices. In a report which recognised the validity of the grievance, the Select Committee regrettably passed the buck to the Commissioner to consider in the context of her upcoming five-yearly review of the governing legislation and the Code of Rights, scheduled for the end of 2023. It is to be hoped that the Commissioner then sees the light and supports such reform.
Biography
Jo Manning is a Professor of Law and Associate Dean Postgraduate at the Auckland Law School, where she teaches and researches in the areas of health law, ethics and policy, as well as tort law, negligence and accident compensation law.