Health sector decision making, notably in the public sector, is constrained by significant administrative law obligations. The courts and Ombudsmen are often called on to scrutinise health sector agencies. We routinely advise clients on all aspects of their legal mandate and decision making processes, including consultation and managing conflicts of interest. We provide training in public law obligations. Scrutiny comes in various forms. Our lawyers have been involved in many of the key judicial review cases involving health sector decision making. We address habeas corpus applications, human rights proceedings and complaints to the Ombudsmen.
When it comes to public law obligations:
- how the decision is reached is as important as the decision itself
- do you understand who must make the decision, on what basis and with what process?
- the Bill of Rights and Human Rights Acts cast a shadow over much activity in the health sector.
Examples of work done by Claro lawyers:
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. The High Court’s decision is currently the subject of appeal before the Court of Appeal.
Compensation claim by an unsuccessful tenderer following a DHB procurement process. We represented a DHB in responding to an alleged breach by the DHB of a fair procurement process. The complainant raised a number of process concerns including conflict of interest, breach of the process contract, and a failure to apply the evaluation criteria. Following negotiation the complainant did not pursue the claim.
High Court statutory appeal on the jurisdiction of the Health Practitioners Disciplinary Tribunal to suspend (or defer) a penalty of suspension imposed on a health practitioner. We represented a professional conduct committee of the Dental Council in successfully prosecuting a dentist for professional misconduct where the dentist continued to practise dentistry after being suspended by the Dental Council for safety reasons. The Tribunal imposed an order of suspension of six months, but suspended the commencement of that order for 2 years. The effect of this ‘good behaviour bond’ was that the suspension would only be felt by the practitioner if there was further offending of some kind. We subsequently acted for the professional conduct committee in successfully appealing the decision to the High Court, which found that the Tribunal did not have jurisdiction to suspend a suspension in this way.
Statutory, administrative and public law responsibilities of public health and disability organisations under the New Zealand Public Health and Disability Act. We have advised different types of public health and disability organisations on all legal responsibilities, the interface with the Crown Entities Act, Public Finance Act, Public Audit Act, and other public sector legislation. We have advised on the limits of statutory decision-making, the development of policy and consultation obligations. Our advice regularly involves consideration of documentation including the Operational Policy Framework, the Crown Funding Agreement, letters of expectation, and annual plans.
Claim by a private provider that it was entitled to a contract with a DHB to provide aged residential care services in the DHB’s region on the basis that the provider held similar contracts with other DHBs. Issues included the interface between the Social Security Act and the DHB’s obligations and powers under the NZ Public Health and Disability Act; and the DHB’s entitlement to act autonomously.
Judicial review of the investigation of a complaint about a health practitioner. We acted for the practitioner, who applied to the High Court for review of the manner in which a regulatory authority and its professional conduct committee managed an investigation into a complaint. There was considerable delay in progressing the investigation. The High Court entered judgment by consent confirming that the delays were unfair to the health practitioner, and granting a permanent injunction preventing the professional conduct committee from continuing its investigation.
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 issues by the Office of the Auditor-General. We have assisted boards take the extreme action of suspending members.
A public law audit of a crown entity’s exercise of statutory functions and objectives, including a review of all of its substantive policies, procedures and processes, with reference to the NZ Public Health and Disability Act, the Crown Entities Act, and previous cases against the crown entity. A substantive report following the audit was prepared. The majority of our recommendations were implemented through review, consultation and amendment of relevant policies, procedures and processes.
Ability of healthcare provider to part-charge for services. Providing advice on whether part-charging for services is legally authorised within the statutory scheme regulating a healthcare provider.
Training we offer:
- Duties and obligations in providing health and disability services. We regularly run seminars and workshops on organisations’ duties and obligations with respect to the provision of health and disability services.
- Health Law Intensive, a four day course run in collaboration with the University of Otago. The course is designed specifically for senior clinicians, board members, chief executives and managers working in the New Zealand health sector.
- Governance induction programmes for new members to Boards, including District Health Boards and Regulatory Authorities. 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.
- Privacy and Information. We run training programmes for health providers, public sector organisations and statutory entities on the Privacy Act and Official Information Act, and on the management of health information in accordance with the Health Act and Health Information Privacy Code.