Why is this investigation taking so long?

Jonathan Coates

It’s a question we are asked almost daily.

Why is the Health and Disability Commissioner taking so long to investigate?  Why does it take so much time before an inquest can be held?  Why is the Professional Conduct Committee not moving more quickly if they are really worried about the risk to the public?

It tends to be quickly followed by a second question.

What can we do about it?

We all know how stressful complaints, investigations, inquests and inquiries can be.  For health practitioners and providers it is no exaggeration to say that it can feel like the Sword of Damocles hangs above the head; careers might well be on hold until the black mark of an incomplete investigation can be erased.  For patients and their families the wait for answers can feel interminable.

Two things can be stated here with conviction.

First: good, fair investigations and inquiries do take time.  A rushed investigation may well not achieve justice.  It will never happen as quickly as you’d like.

Second: all too regularly, investigations and inquiries in health simply take far too long.  That’s unfair on everyone.  Justice delayed is, ultimately, justice denied.

How long is too long?

It’s much like the elephant – difficult to describe but you know it when you see it.

Certain organisations have particular responsibilities.  The Health and Disability Commissioner, for example, has a specific and express statutory obligation to resolve complaints in a “speedy” manner.

Even if there isn’t an express requirement to conduct the investigation or inquiry in a timely manner, many investigations will be required to comply with the rules of natural justice.  It is a well-established requirement of natural justice that investigations must be completed within a reasonable period of time.  The more significant the implications for the practitioner, the greater the need to avoid unnecessary delay.  So where, for example, the investigation means that the practitioner can’t work or can only work subject to restrictive conditions, the legal obligation to move quickly will increase.

So what can be done about the investigation that is simply taking too long?

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Ultimately, undue delay can be grounds for a successful legal challenge.  The courts are prepared to intervene and order that investigations or inquiries be stopped (and never re-started) where the facts warrant such decisive action.  The courts will always be interested in the details of the particular case – the length of the delays, the reasons for the delays, the impact on the individuals, the public interest factors.

In our experience, the correspondence will be critical.  Where it’s starting to ‘feel’ like it’s taking too long, it’s well worth letting the decision-maker know of the concerns and the implications that the delays are having.  Regular and timely emails and letters may well be crucial in persuading a court that ‘enough is enough’ if the months are starting to turn into years and minimal progress has been made.

For the decision-makers – don’t ignore genuine concerns about delays.  Sometimes it will be out of your control – and we all know the involvement of lawyers can contribute to delays – but ultimately it is your responsibility to keep the investigation progressing in a timely manner.   We strongly suggest having robust systems in place to set a rough timeframe to work to, and having alerts set up to provide regular reminders to help keep things moving.

For further information contact Jonathan Coates.

Jonathan Coates
DDI: 03 550 0500
Email:  jonathan.coates@clarolaw.co.nz

This article is intended to provide a summary of the subject covered only and is necessarily general and brief. It is not intended as legal advice and nothing in the article should be relied upon without getting specific professional advice.