Conclusion
New Zealand’s lack, until recently, of a ‘code of patients’ rights’ does not mean that health and disability services consumers have hitherto had no rights. There is already a significant body of professional guidelines, ethical precepts, and common law rules which govern interactions between providers and consumers. Much of the Code is entirely consistent with established codes of ethics and current law. Nonetheless, it represents an important advance in the legal recognition of consumers’ rights. Access to the Commissioner and independent advocates will assuredly empower consumers. The experience of the Human Rights Commission and the Privacy Commissioner suggests that consumers will not be slow to exercise their new-found rights, and that providers will risk public censure, and costly settlements, if they choose to ignore the Code.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
References
[1989] 3 NZLR 564. The litigation was a sequel to the 1987–88 Cervical Cancer Inquiry.
Ibid at 572–73. Despite the changes introduced by the Accident Rehabilitation and Compensation Insurance Act 1992, it is not clear that—with the exception of potential liability for mental injury where there has been no physical injury—risk exposure is significantly different. For a contrary view, see Harrison, R. (1993).Matters of Life and Death, Legal Research Foundation, Auckland.
Duncan v Medical Practitioners Disciplinary Tribunal [1986] 1 NZLR 513.
Re X [1991] 2 NZLR 365.
Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235.
Re J (An Infant) [1996] 2 NZLR 134.
Based on an alleged breach of s 155 of the Crimes Act 1961, discussed in detail in McCall Smith, A. and Merry, A. (1996). Medical accountability and the criminal law: New Zealand vs the world.Health Care Analysis 4(1), 45–54, and Paterson, R. (1996). Medical manslaughter law reform: a mistaken diagnosis.Health Care Analysis 4(1), 54–59.
See the leading case ofR v Yogasakaran [1990] 1 NZLR 399.
Long v R [1995] 2 NZLR 691, and Sir Duncan McMullin’s subsequent ‘Report to the Minister of Justice on sections 155 and 156 of the Crimes Act 1961’ (1995) signalled the change.
Although the ordinary negligence standard in s 145 (criminal nuisance) will remain unaffected.
Cartwright, S. (1988).The Report of the Cervical Cancer Inquiry, The Committee of the Inquiry into Allegations Concerning the Treatment of Cervical Cancer at National Women’s Hospital and into Other Related Matters, Government Printing Office, Auckland.
See, for example, Medical Council of New Zealand, (1990).A Statement for the Medical Profession on Information and Consent.
See Collins, D. (1992).Medical Law in New Zealand, Brooker & Friend, Wellington.
Section 10.
Section 11.
Section 21(1)(h) and (i).
Section 28.
Section 29.
Issued by the Privacy Commissioner as a code of practice, under s 46 of the Privacy Act 1993.
Rule 11.
Rule 6, which builds on the precedent, in the public sector, of s24 of the Official Information Act 1982.
The Code is set out in the Schedule to the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996.
Cartwright, S. (1988).The Report of the Cervical Cancer Inquiry, The Committee of Inquiry into Allegations Concerning the Treatment of Cerivical Cancer at National Women’s Hospital and Other Related Matters, Government Printing Office, Auckland.
By the Health and Disability Services Act 1993.
Address by Minister of Health Bill Birch to Medico-Legal Conference, Auckland, 18 October 1993.
Health and Disability Commissioner Act 1994 (HCA), s5.
Section 75. As required by s75(2), a statement of reasons for material changes to the draft Code was tabled in Parliament by the Minister of Health, on 30 April 1996.
See definition of ‘rights’ in cl 4 of Code.
HCA, ss 3 and 4.
HCA, s 2.
Idem.
Idem.
HCA, s 72.
Code reg 1(3).
Phone 0800-11-22-33.
The Code does not cover privacy of information, which is regulated by the Privacy Act 1993. See HCA s 20(1)(c)(i) and definition of ‘privacy’ in clause 4 of Code.
Rule 4 and commentary.
See clause 4 definition of discrimination. The s 21 prohibited ground include sex, marital status, race, disability, age, and sexual orientation.
In practice, the Health and Disability Commissioner is likely to refer complaints of discrimination to the Human Rights Commission, as permitted by HCA, s 40.
The fiduciary nature of the doctor / patient relationship was recognised by Jeffries J. inDuncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513, 521.
In conformity with a standard accepted as proper by a responsible body of professional opinion:Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
Right 4(1).
Right 4(2).
Right 4(4).
Clause 4.
Right 4(5).
Except where safety may be compromised or another consumer’s rights may be unreasonably infringed: right 8. The presence of a support person may serve to put a consumer at ease, help convey complex information, and provide useful corroboration in the event of a complaint.
Rogers v Whitaker (1992) 175 CLR 479.
IncludingCanterbury v Spence 464 F 2d 772 (1972) andReibl v Hughes (1980) 114 DLR (3d) 1.
Right 6(3).
Right 6(1)(f) and (g).
Right 6(3)(d).
Right 6(4).
‘Informed consent’, in relation to health care procedures, means consent that is voluntary and in accordance with the Code: HCA, s 2. Both at common law and under the Code, the concept of informed consent is an unhelpful mix of requirements relating to information disclosure (theinformed requirement, covered by rights 5 and 6) and voluntariness and competence (theconsent requirement, covered by right 7).
Right 7(6).
Right 7(2). Cf Protection of Personal and Property Rights Act 1988, s 5.
Right 7(3).
Right 7(1) preserves the common law ‘necessity’ exception: seeIn re F [1990] 2 AC 1.
Right 7(4). Cf Protection of Personal and Property Rights Act 1988, s 18(4)(c)(ii), and the guidelines proposed by Thomas J. inAuckland Area Health Board v Attorney-General [1993] 1 NZLR 235.
Right 7(5) and cl 4. The validity of an advance directive at common law was confirmed inAiredale NHS Trust v Bland [1993] AC 789.
New Zealand Bill of Rights Act 1990, s 11.
Right 7(7).
National Radio (Kim Hill) interview, 2 May 1996, andSunday Star-Times column, 12 May 1996, C4.
NZMA press release, 1 May 1996.
HCA, s 20(1)(f).
Rights 10(6) and (3).
Rights 10(6)–(8).
HCA, Part III. There are 9 advocacy services nationwide, employing 62 advocates.
HCA, ss 31 and 32. The Commissioner may also commence an investigation on her own initiative, where any action appears to be in breach of the Code: as 14(1) (e) and 35.
The Commissioner may call a mediation conference in an endeavour to reach a settlement: s 61.
See, for example, Medical Practitioners Act 1995, ss 83(4) and 86.
HCA, s 45.
HCA, ss 45(f).
HCA, ss 15 and 49(1). The Director of Proceedings is required to consider the wishes of the complainant and the aggrieved person (if different), and the public interest in appropriate disciplinary proceedings, in determining a course of action: s 49(3).
HCA, s 51.
Clause 6 of Code.
HCA, s 54(1).
HCA, ss 52(2) and 75(1)(d).
HCA, s 57(1).
References
By virtue of The Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996.
Department of Health (1996).NHS The Patient’s Charter: Services for Children and Young People, Department of Health, London. (Available from Health Literature Line: tel +(44)-0800-555777.)
Alderson, P. and Montgomery, J. (1996).Health Care Choices: Making Decisions with Children, Institute for Public Policy Research, London.
Strictly speaking, not parents but persons with parental responsibility for the child.
See Gillick v West Norfolk and Wisbech Area Health Authority (1985) 3 A11 ER 402.
per Lord Donaldson in Re W (1992) 4 A11 ER 627 at 635.
per Lord Donaldson in Re W (1992) 4 A11 ER 627 at 636.
United Nations Convention on the Rights of the Child 1989.
Children Act 1989.
Alderson, P. (1993).Children’s Consent to Surgery, Open University Press, Buckingham.
Bearison, D. (1991).They Never Want To Tell You: Children Talk About Cancer, Harvard University Press, London.
per Laws, S. in R v Cambridge District Health Authority. Ex parte B,The Times 15 March 1995.
Author information
Authors and Affiliations
Rights and permissions
About this article
Cite this article
Paterson, R. Health care law. Health Care Anal 5, 43–55 (1997). https://doi.org/10.1007/BF02678454
Issue Date:
DOI: https://doi.org/10.1007/BF02678454