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

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.

New Zealand's Bold New Structural Health Reforms: The Pae Ora (Healthy Futures) Act 2022.

New Zealand has implemented a transformative overhaul of its public health system. Regulated by the Pae Ora (Healthy Futures) Act 2022 (NZ), the system has two key objectives: first, greater centralisation, with 20 regional district health boards replaced by two central commissioning agencies. New Zealand has a truly national health system for the first time, an aim being to end the "post code lottery". The second driver is to finally "get real" in tackling persistent inequities in health outcomes and access of disadvantaged groups, especially Maori, New Zealand's indigenous people, via various initiatives, including creation of a Maori Health Authority. A revolutionary aspect of the reforms is that the principles of the founding Treaty of Waitangi between Maori and the Crown have been embedded in the legislation as high-level guiding principles for all entities. Well-intentioned aims are a good start, but will need to be matched by realistic funding if the reforms are to have any chance of success.

Children, Parents, Courts and Medical Treatment: Now Who Decides?

This paper analyses three decisions by different High Courts (England and Wales) concerning the competence of children and adolescents to consent to medical treatment. In Re X (No 2) Munby J upheld two decisions from the early 1990s (Re R and Re W), in which the Court of Appeal held that a court has inherent power to override a Gillick-competent child's refusal of consent to a medical treatment. The second and third decisions concerned puberty blockers (PBs) for gender dysphoria. In Bell, the Full Court considered these "experimental" and "controversial" treatments with potentially lifelong implications, such that it was doubtful that a child under 16 could understand and weigh their long-term risks and consequences and thus be competent to give a legally valid consent to treatment with them. In AB v CD the Court held that parents nevertheless retained the ability to consent to PBs if the child could or did not do so. Bell is subject to appeal. If successful, a court could revisit the interrelationship between the respective legal decision-making powers of Gillick-competent minors, their parents, clinicians, and courts.

Feats, Flops, and Free Lessons From NZ's Response to the COVID-19 Pandemic.

Beginning from the first reports of COVID-19 out of China, this article provides a commentary on the actions taken by the Government of New Zealand in terms of nine themes-a national response with an elimination goal, speed, and comprehensiveness of the initial response; an evidence-based, science-led approach, prioritised on protecting lives; effective communication; leadership style which appealed to collective responsibility and attempted to de-politicise the Government's response to the virus; flexibility of response characterised by 'learning as you go'; oversight of coercive state powers, including a pragmatic response which attempted to defuse conflict and reserved use of 'hard power' to a last resort; deployment of public health interventions, and health system adaptations; the impact on Maori and marginalised communities; and economic protection and stimulus-to identify factors that might help explain why New Zealand's pandemic response was successful and those which could have been managed better. The partially successful legal challenge brought to the four-and-a half week lockdown, the most stringent in the world, in Borrowdale v Director-General of Health, is also considered.

Changing to Deemed Consent for Deceased Organ Donation in the United Kingdom: Should Australia and New Zealand Follow?

During 2020 new legislation in England and Scotland will come into force, which adopts a Welsh reform implemented in 2015, changing the law on deceased organ donation from an "opt-in" regime, based on the explicit consent of the deceased donor during their lifetime or that of their family, to a model of soft, "opt-out," whereby the deceased's consent to donate will be "deemed" unless they have registered or made known an objection during their lifetime. This column examines the ethical case for both regimes and analyses the law reform and its implications. A key issue is whether the controversial practice in soft opt-in systems of the family override, even where the deceased had opted in, will continue under the new regime. The sole aim of the law reform is to increase the supply of organs from deceased donors for transplantation to meet ever-increasing demand. Notwithstanding that taskforces in Australia and New Zealand have recently rejected introducing opt-out systems and New Zealand has not yet even introduced a dedicated organ donation register, evidence of increased donation rates following the UK reform may revive an issue which is currently off the reform agenda in this part of the world.

"Hospitals and Clinicians Need Not Apply:" Withdrawing Clinically Assisted Nutrition and Hydration in Undisputed Cases.

In 2018 the United Kingdom Supreme Court decided in An NHS Trust v Y [2018] 3 WLR 751; [2018] UKSC 46 that the time had come to move on from the "good practice" requirement in Airedale NHS Trust v Bland [1993] AC 789 for hospitals and doctors to obtain court approval before life-prolonging treatment can be withheld or withdrawn from a patient in a permanent vegetative state (PVS). It held that it is no longer necessary to involve the court in every case before life-sustaining clinically assisted nutrition and hydration (CANH) can be withdrawn. Provided the provisions of the Mental Capacity Act 2005 (England and Wales) and relevant professional guidance are followed, and there is no difference of medical opinion or lack of agreement from interested parties, in particular family members, with the proposed course of action, legal permission is not required. The ruling applies to PVS patients, as well as, more controversially, those in a minimally conscious state (MCS), the newer diagnosis identified post-Bland. This commentary summarises the Supreme Court's decision, and considers some implications for England and Wales, as well as for Australia and New Zealand, where there is no recommended practice of, much less any legal requirement for hospitals to seek court approval, even in disputed cases.

Oh What an Unholy Mesh! Diamond v Royal Devon & Exeter NHS Foundation Trust [2019] EWCA Civ 585.

In Diamond v Royal Devon and Exeter NHS Foundation Trust [2019] EWCA Civ 585, the Court of Appeal mistakenly applied the wrong test to the issue of the causal link between the surgeon's failure to disclose material information and her physical injury. Even had that test been correct, its application to the facts was open to question and arguably unsympathetic. The decision is also of note for adding to a line of previous Court of Appeal decisions, which have held that breach of the duty of disclosure does not create a stand-alone right to damages for loss of autonomy.

Deathbed Confession: When a Dying Patient Confesses to Murder: Clinical, Ethical, and Legal Implications.

During an initial palliative care assessment, a dying man discloses that he had killed several people whilst a young man. The junior doctor, to whom he revealed his story, consulted with senior palliative care colleagues. It was agreed that legal advice would be sought on the issue of breaching the man's confidentiality. Two legal opinions conflicted with each other. A decision was made by the clinical team not to inform the police. In this article the junior doctor, the palliative medicine specialist, a medical ethicist, and a lawyer consider the case from their various perspectives.

Q: Can a Court or Patient Demand Treatment? A: Yeah But No.

The principle from Re J [1993] 3 WLR 507 has stood since 1993: a mentally competent patient cannot demand a specific treatment, nor can a court make an order which would force a doctor to administer a treatment, which, in either case, the responsible doctor considers is contrary to his/her best interests. This column considers the extent to which this principle remains good law 25 years later, concluding that it retains most current relevance in respect of mentally competent patients. In respect of mentally incapacitated patients, however, once a court's jurisdiction has been invoked, the principle appears to be observed in form only, rather than in substance. We have moved a long way from doctors having the ultimate power and responsibility for making treatment decisions to courts becoming heavily involved in making them.

Does the Law on Compensation for Research-Related Injury in the UK, Australia, and New Zealand Meet Ethical Requirements?

Despite a consensus that society owes an ethical obligation to compensate for research-related injury, and that no-fault is the best ethical response, an assessment of the compensation arrangements in place in the UK, Australia and New Zealand shows that in general compensation arrangements fall below this ethical expectation. Most subjects rely on ex gratia payment or an unenforceable assurance of payment in the event of injury. It is also likely that, given significant deficiencies in participant information about compensation arrangements in place for trials recommended by the supervisory ethics agencies in each jurisdiction, subjects only find out about their financial exposure in the event of injury. Industry-drafted guidelines governing compensation in commercially sponsored trials do not protect subjects' interests, but operate primarily to protect the interests of industry. The article considers potential solutions to the ethical deficiency of the compensation arrangements, and argues that the ethical corollary of the fact that society is the ultimate beneficiary of its members' participation in clinical research, is that society as a whole should bear the cost of participant injuries, through establishment of a central no-fault compensation fund financed either by the state or those directly involved in biomedical research.

NON-CONSENSUAL CLINICAL RESEARCH IN NEW ZEALAND: LAW REFORM URGENTLY NEEDED.

In New Zealand non-consensual research studies on incapacitated adults are of doubtful legality under current laws. This column argues that the current situtation goes too far, inevitably depriving incompetent participants as individuals and as a group of access to medications for which there is good reason to be confident may be directly beneficial to them, as well as to future patients and society. At the same time, incapacitated participants are particularly vulnerable to exploitation and harm. All jurisdictions in which non-consensual research is undertaken have to balance these competing ethical considerations. In the United Kingdom, three different pieces of legislation have been enacted which permit non-consensual research to proceed, subject to a comprehensive regime of strict protections for participants. The column analyses these and argues that an excellent model can be constructed from them. In late 2014, the New Zealand Health and Disability Commissioner agreed to investigate this issue with a view to proposing law reform, but the promised public consultation has never eventuated. It must do so without further delay for the protection of participants and researchers, and in the interests of society.

Changing disciplinary responses to sexual misconduct by health practitioners in New Zealand.

In response to societal changes, a more flexible disciplinary response to sexual relationships between health practitioners and patients has developed over the last 15 years in New Zealand. The new approach involves a close focus on the circumstances of the particular case, balancing relevant aggravating and mitigating factors, to determine whether a disciplinary finding is called for and the appropriate penalty. Relationships between parties in relatively equal power positions, without strong evidence of patient exploitation or vulnerability, where prompt steps are taken to disengage the professional relationship, or involVe minor health services only, may not result in a disciplinary finding at all. Even where patient vulnerability is present, there has been movement away from automatic de-registration to suspension for periods often less than the maximum, provided there are sufficient mitigating factors. There is early indication of a stricter approach in the relatively new category of case of downloading and accessing objectionable material than in cases of sexual relationships, although there are too few cases yet to enable an appropriate disciplinary benchmark to have emerged. The rhetoric of the need for severity and public protection in one such case was not, however, matched by the imposition of the most serious of penalties.

Criminal responsibility for the non-disclosure of HIV-positive status before sexual activity.

In 2012 the New Zealand Court of Appeal, in a radical change in direction, held that the non-disclosure of HIV-positive status prior to unprotected sexual relations could amount to fraud vitiating consent, so that the offence of sexual violation is committed. The court applied R v Cuerrier [1998] 2 SCR 371, a controversial Canadian decision, which held that for the offence to be established the Crown has to establish that the dishonesty had the effect of exposing the person consenting to "a significant risk of serious bodily harm". In 2012 in R v Mabior [2012] SCC 47 the Supreme Court of Canada reviewed the correctness of its own decision in Cuerrier. The court considered first whether, in holding that non-disclosure of HIV can make sexual intercourse non-consensual and lead to conviction for the serious offence of aggravated sexual assault, Cuerrier overextends the criminal law. Secondly, the court considered issues left open in Cuerrier: whether condom use and/or a low viral load in the partner with HIV prevents failure to disclose HIV status before intercourse from posing "a significant risk of serious harm". This column analyses these two recent high-level decisions.

In this Together: International Collaborations for Environmental and Human Health.

Climate change exacts a devastating toll on health that is rarely incorporated into the economic calculus of climate action. By aligning health and environmental policy and collaborating across borders, governments and industries can develop powerful initiatives to promote both environmental and human health.

Informed consent for medical student involvement in patient care: an updated consensus statement.

Enabling patients to consent to or decline involvement of medical students in their care is an essential aspect of ethically sound, patient-centred, mana-enhancing healthcare. It is required by Aotearoa New Zealand law and Te Kaunihera Rata o Aotearoa Medical Council of New Zealand policy. This requirement was affirmed and explored in a 2015 Consensus Statement jointly authored by the Auckland and Otago Medical Schools. Student reporting through published studies, reflective assignments and anecdotal experiences of students and teachers indicate procedures for obtaining patient consent to student involvement in care remain substandard at times. Between 2020 and 2023 senior leaders of Aotearoa New Zealand's two medical schools, and faculty involved with teaching ethics and professionalism, met to discuss these challenges and reflect on ways they could be addressed. Key stakeholders were engaged to inform proposed responses. This updated consensus statement is the result. It does not establish new standards but outlines Aotearoa New Zealand's existing cultural, ethical, legal and regulatory requirements, and considers how these may be reasonably and feasibly met using some examples.

Withdrawal of life-sustaining treatment from a patient in a minimally conscious state.

This column reports on a recent decision, the first in England in which a court was asked to authorise the withdrawal of artificial nutrition and hydration from a patient in a "minimally conscious state". Since the seminal decision in 1993 in Airedale NHS Trust v Bland [1993] AC 789, in which the House of Lords authorised withdrawal of artificial nutrition and hydration from a patient in a persistent vegetative state, the relatively new diagnosis of a "minimally conscious state" has been recognised. In deciding whether it was in the patient's best interests that artificial nutrition and hydration be withdrawn and withheld, the court made a key legal determination, with precedential effect, as to whether the so-called "balance sheet" approach to determining a patient's best interests, as opposed to the (discredited) "futility" principle, applies to a patient in a minimally conscious state. The merit of the former approach is that it forces explicit consideration of quality-of-life assessments in favour of and against withdrawing life-sustaining treatment. A significant pitfall of the English position, as it is currently developing, is the premium it places on accurate diagnosis, whether of vegetative state or minimally conscious state. These issues will have to be faced sooner or later by Australasian courts.

Priority-setting processes for medicines: the United Kingdom, Australia and New Zealand.

The agencies involved in the assessment and prioritisation of medicines for public subsidy purposes in Australia, England and Wales, and New Zealand are compared in terms of their processes; ultimate decision-maker and political involvement in decisions; price-setting processes; decision criteria and inclusion of economic assessment of cost-effectiveness; provision for the rule of rescue and separate treatment of potentially life-saving medicines and cancer drugs; levels of access; extent of consumer participation in processes and decisions; and provision for appeal from decisions. All countries face the key challenge of expanding access to important new treatments, while maintaining cost-effectiveness as a key criterion for public funding and safeguarding the affordability and sustainability of their programs into the future. New Zealand's model may have led to a greater focus on cost-containment and overall affordability than those of the other two agencies. Despite controversial decisions that have led on occasion to disappointment and challenge, the Australian and New Zealand agencies have survived and appear to have managed to date to maintain public and political support. By contrast, the United Kingdom's National Institute for Healthcare and Clinical Excellence is facing major changes to its role that could see it become more of an advisory organisation.

Access to justice for New Zealand health consumers.

New Zealand has evolved a just, sensible and balanced system for addressing adverse medical events. This article considers potential changes to enhance justice for health consumers after an adverse event. Patient motivations for claiming are described. Changes to the complaints regime are considered with the aim of opening up access to the Human Rights Review Tribunal. Modest change only is advocated, to avoid the potential for the tribunal to become a de facto appeal mechanism. The preferable solution is greater access to Health and Disability Commissioner investigations. The second part of the article considers changes, some implemented already, to the compensation regime to make it more affordable. These will compromise the ability of the scheme to address the remedial interest of injured patients in compensation. Undesirable consequences are likely to occur across the system. Policy-makers need to consider the ramifications of change for the system as a whole.

A balanced opinion? Considering the role of the external clinical advisor in ACC processes.

The role of the external clinical advisor is critical to the adjudication of complex claims in the processes of the Accident Compensation Corporation (ACC). This is particularly true of claims for treatment injury that occur during birth, which are often very complicated. In most cases external clinical advisors are non-treating doctors, whose opinion strongly guides the hand of ACC. This viewpoint considers the impact of the role of the external clinical advisor by using extracts from an external clinical advisor's report to show how a power imbalance can be enacted in ACC decision making processes. Also considered are the way that the normal checks and balances in the system, particularly those provided by the Health & Disability Commissioner, are bypassed in most cases. Finally, a recommendation is made to potential external clinical advisors to precisely following the standards set by the Medical Council in all cases when writing reports for ACC.