DHBs lie at the heart of the public health system, funding and providing a wide array of health related services. From substantial service contracts to infectious diseases and withdrawal of life support, DHBs often find themselves at the sharp end of decisions about provision of healthcare.
Our lawyers are immersed in the activities of DHBs around the country. We routinely advise on medico-legal questions, both patient specific (such as managing incompetent patients, end of life issues and complaint management) and complex policy issues, (such as care and protection, information systems and service structure). We advise on funding, procurement and employment matters, as well as clinical and corporate governance. We routinely appear in coroner’s inquests and applications for treatment orders and have represented DHBs in significant medico-legal and public law litigation.
Our lawyers have worked with or within DHBs for many years. We are familiar with the legal, structural and policy context within which DHBs operate. We understand the need for clear, concise and practical support in situations where urgency and sensitivity are often paramount.
We work with DHBs on issues relating to:
- Complaints and investigations
- Privacy and information management
- Clinical and corporate governance
- Contracting and procurement
- Employment relationships
- Mental health
- Compensation and claims for damages
- Medical law and treatment issues
- Public and administrative law
- Pharmaceuticals, medicines and medical devices
- Public health
Examples of work done by Claro lawyers
Conflicts of interest involving DHB board members who also hold other public office. Tensions often arise between the responsibilities of board members to the DHB (and to the Minister) and members’ other responsibilities. Elected members sometimes feel accountable to their constituents. We have been involved in a number of complex conflicts of interest cases, including cases involving members who are strongly and publicly opposed to decisions being made by their board. Our advice includes consideration of responsibilities under the NZ Public Health and Disability Act, the Crown Entities Act, and the guidelines issued by the Office of the Auditor-General. We have assisted boards take the extreme action of suspending members.
Clinical practice investigation into competence concerns about a senior doctor employed by a DHB. We advised the DHB on the appropriate process to enquire into the concerns, including ensuring the investigation met requirements as set out in the Senior Medical Officers’ collective employment agreement, and good employment law processes generally. The investigation was complicated by the fact that the senior doctor had recently been credentialed as part of the DHB’s credentialing process, but this had not adequately managed the significant concerns held about the doctor’s practice. The outcome of the investigation was that areas of significant concern were found and the doctor was stopped from practising in these areas – but was considered safe and competent to continue to practise in other areas. The DHB liaised with the Medical Council throughout.
The Dr Hasil HDC investigation. Dr Hasil was an overseas trained gynaecologist with a high rate of failed tubal ligations, an alcohol problem and competence/communication issues. Concerns had been raised about him but not acted on. A major HDC inquiry was conducted into all aspects – credentialing and recruitment process, employing overseas trained doctors, notifying the Medical Council, clinical supervision, and managing complaints. There were major sector-wide learnings as a result of this case. The report can be found here.
Hunger striker’s refusal of medical treatment while in prison. We acted for a DHB to obtain a declaration from the High Court that it was lawful to respect the inmate’s refusal of medical treatment during a prolonged hunger strike. The prisoner was protesting against what he believed was an injustice he had suffered in a criminal trial. He refused to eat, drink or be given artificial nutrition or hydration, either in prison or in hospital. The Department of Corrections sought an order to give him food and water against his wishes – and wanted this to happen in hospital. The DHB was not prepared to ‘force feed’ the man in the face of his competent refusal. After a High Court hearing lasting a number of days the Court ruled that the man’s wishes must be respected even if that meant he would die. This is now a leading decision on a patient’s right to refuse medical treatment, advance directives, whether refusal of treatment as part of a protest is a ‘suicide’, and the interface between medical ethics and the obligation of the state to protect the health of prisoners. The decision can be found here.
Habeas corpus in a mental health context. A patient detained under the Mental Health (CAT) Act applied for a writ of habeas corpus alleging an unlawful detention by a DHB’s mental health service. The allegation related to an alleged procedural error by the Judge who made the compulsory inpatient order. The ‘second health professional’ consulted by the Judge for the purposes of section 18 Mental Health (CAT) Act had not been involved in the care of the patient. We acted for the DHB in the High Court in responding to the application for a writ. While the High Court found that the Judge had not met the consultation obligations under section 18, it was not prepared to issue the writ.
A claim by a mental health patient who was raped by another patient. The victim sought exemplary damages and public law compensation from the DHB responsible for treating both patients. The plaintiff alleged that the DHB breached its duty to her by not protecting her from the harm posed by the assailant. The claim included an allegation that the plaintiff’s right not to be deprived of life protected under s 8 NZ Bill of Rights Act had been breached. The High Court’s judgment is now a leading decision in the duty owed by a mental health service to a third party. .
A parental decision not to allow reinsertion of a feeding tube for a 7 year old boy knowing failure to do so would hasten death. Our lawyers were involved in urgent weekend proceedings seeking declarations under the High Court’s inherent jurisdiction/orders under the Care of Children Act, advising the DHB/clinicians throughout; facilitating ethics committee procedures, and reports on the child’s best interests. There was potential for criminal liability/professional consequences for the health providers involved. Unavailability of a second guardian added complexity. Our lawyers filed an urgent application, evidence, and submissions, and arranged appointment of counsel for child. Orders were obtained that allowed the parent’s wishes to be followed, with clinicians/DHB confident of no repercussions. We subsequently advised on name suppression and coronial matters.
Process management for a deeply divided board with repeated attempts by two members to have the Chair removed. Members’ votes split evenly with the Chair abstaining. Our lawyers advised throughout the matter on legal and governance issues, including legislative obligations, general governance and conflict of interest procedures, and responsibilities to the Minister. A clear process was advised, risks were identified and managed, and the board received training on governance issues.
Development of clinical governance, legal compliance and risk management policies, procedures and guidelines so that these are easy to understand for staff across the organisation. We have complemented those policies, procedures and guidelines by the development of information sheets and checklists, which set out key principles in simple, non-legalistic terms.
High Court claim for breach of privacy and confidentiality following the unlawful access by an employed health professional to the patient records of a personal acquaintance. We represented the DHB. The claim raised issues of vicarious liability of a DHB where an employee acts outside clear instructions of the employer and in breach of employer’s policies. Following negotiation the complainant did not pursue the claim.
A patient’s disclosure to a mental health nurse that he had killed his partner. The patient was in police custody at the time of disclosure. The statement was recorded in the nurse’s notes; police requested disclosure of the notes. Our lawyers provided urgent advice to the DHB which covered balancing of competing interests; patient confidentiality/damage to therapeutic relationship versus public interest in the Police investigating a possible homicide. We also advised clinicians on legal issues, process to follow, risks associated with both disclosing and withholding, and implications if the Police obtained a search warrant.
Human Rights Review Tribunal (HRRT) claim against a DHB for interference with privacy. We acted for the DHB, which had refused to provide the patient with a written report on his mental health, the report being withheld under the Privacy Act on several grounds, including that it was likely to endanger the safety of any individual. The legal issues were complicated by the fact the report had been read aloud to the patient, but a psychiatrist believed that disclosure of the written report to the patient might result in fixation by the patient and harm to others. The DHB’s decision to withhold had been upheld by the Privacy Commissioner. The claim to the HRRT was subsequently withdrawn.
A contentious application for court orders for placement of a patient in dementia level care. We advised a DHB on an urgent application for personal orders; drafted statements on behalf of DHB staff; and appeared for the DHB at the three day contested hearing. The patient’s partner did not agree that it was in the patient’s best interests to be placed in a dementia care unit and believed that she could care for her partner at her home. She also believed that the medication prescribed for the patient was detrimental to his health, and preferred homeopathic alternatives. The court ordered that the patient be placed in a stage 3 dementia unit and that treatment be provided as determined to be in the patient’s best interests by the health professionals involved in his care. The patient’s daughter was appointed as the patient’s welfare guardian for matters not covered by the orders. We were also involved in advising the DHB on related requests for information under the Official Information Act, and advising the residential care provider on management of the patient following the orders.
Consent and disclosure issues relating to a 15 year old patient. The young woman had a significant injury with a limited prospect of recovery. Her parents wished to protect her from the harsh realities of the condition and sought to manage her care, restrict visitors and filter information being provided to her. Hospital staff were uncomfortable with the parents’ approach and unclear about their legal obligations. We advised on obligations to the patient and her parents and strategies for managing the situation going forward.
Review of DHBs’ child protection policies, including participation in multiagency care and protection groups. Addressing concern about the safety of children raises complex consent and information management questions. We have advised on the legal parameters around child protection processes and decision making. These include consent requirements, interface with CYFS and the Police, child protection alerts and risk to siblings. We have also advised on governance, practice and disclosure issues relating to multi-agency groups.
Judicial review of a DHB’s smoke-free policy preventing mental health patients in the DHB’s in-patient units being able to smoke on DHB premises. We represented the DHB in the proceeding. The application, brought by two mental health patients and a former mental health nurse – challenged both the DHB’s decision-making process and the legality of the policy itself in a mental health context. The applicants alleged that the policy discriminated against mental health patients. The High Court dismissed the application in its entirety and found that the DHB’s decision-making process was robust; the policy was consistent with the DHB’s statutory functions and objectives under the NZ Public Health and Disability Act (including its public health functions); the policy was not discriminatory; and the policy was consistent with the DHB’s obligations under the Health and Safety in Employment Act. A copy of the High Court decision can be found here.
An inquiry into a DHB’s mental health service under s95 Mental Health (Compulsory Assessment and Treatment) Act (Mental Health Act). This was the largest s95 inquiry in recent years. Evidence was heard over 12 days, including investigating the care provided; the role of the Director of Area Mental Health Services (DAMHS); rights of patients under the Mental Health Act; incident reporting; detention of informal patients; the effect of restructuring/staff shortages; the role of the Chief Medical Adviser; the dual role of the clinical director and DAMHS; conflict with registrars; management of concerns about a doctor’s conduct and obligation to refer to Medical Council on resignation.
Collective IT procurement involving three large DHBs. We advised on a procurement project involving the joint funding of a significant IT platform and the provision of “cloud” based support and maintenance services. The project required the negotiation of a robust commercial contract between the cloud based service provider, and the drafting of the supporting governance arrangements between the three DHBs.
Clinical trial agreements and structures. We frequently provide advice on and review clinical trial agreements, and are experts at finding our way around the industry templates for clinical trial agreements and related indemnity and compensation agreements. Alongside this, we provide advice on structuring arrangements for the funding and operation of clinical trials, and the ownership of clinical research related intellectual property.
Training we offer
- We run training programmes and induction sessions for new members to Boards. This training includes an introduction to the key pieces of legislation the member/s will be working with, and guidance on good governance processes, including dealing with conflicts of interest and good decision-making. For more information on these training programmes, contact Jonathan Coates or Anita Miller.
- We regularly run seminars and workshops on organisations’ duties and obligations in the provision of health and disability services. We also run the Health Law Intensive in collaboration with the University of Otago. This course is designed specifically for senior clinicians, board members, chief executives and managers working in the New Zealand health sector. For more information, contact Jonathan Coates or Anita Miller.