Access to Justice: The Quest for a Right of Appeal in New Zealand's Health and Disability Commissioner Complaints Scheme.

Abstract

Given the absence of a civil damages action for personal injury in New Zealand, its Health and Disability Commissioner's (HDC) complaints process occupies a pivotal role in its medico-legal arrangements. Much hope was invested in it, but as currently configured, the regime is incapable of delivering justice or fulfilling its legislative purpose in a good number of cases. Many hundreds of complaints per annum, in which there is a strongly arguable case of deficient conduct or more than a mild departure from acceptable standards and in which a serious outcome has resulted, are not fully investigated; and there is no mechanism to appeal an adverse HDC decision that a party considers substantively unfair. Recent criticism of these issues by courts, the Chief Ombudsman, and commentators has mounted, and a petition to Parliament seeking legislative reform to create a right to appeal from adverse HDC decisions resulted in referral of the issue to the Commissioner to consider in an upcoming review, but hoped-for reform will not happen quickly.