How to be aware of and enforce your rights as a patient

Introduction

How can I find out about my rights as a patient?

As a patient you're protected by the Code of Health and Disability Services Consumers' Rights. This Code grants rights to patients and also places a number of corresponding duties on doctors and others who provide health services. These rights and duties are explained below.

You can obtain a copy of the Code from the Health and Disability Commissioner. The Code is also available on-line at the Commissioner's website (www.hdc.org.nz).

Your rights under the Code of Health and Disability Services Consumers' Rights

Your right to be treated with respect

As a patient, you have the right to be treated with respect, which includes having your right to privacy respected.

The services that you receive should take into account the needs, values and beliefs of your particular cultural, religious, social or ethnic group.

Services should be provided in a manner that respects the patient's dignity and that gives independence to the individual.

Every patient should feel free from discrimination, coercion, harassment and exploitation.

Your right to proper standards of treatment

The treatment that you receive as a patient

  • should be provided with reasonable care and skill
  • should comply with legal, professional and other relevant standards
  • should be consistent with your needs, and
  • should be provided in a manner that minimises any harm to you and that maximises your quality of life

Your right to information

As a patient you have the right to be fully informed. You have the right to an environment that allows, open, honest and effective communication.

The right to be fully informed includes receiving an explanation of your condition and of the options available to you. You should be told of the expected risks, side effects, benefits and costs of each option. You're also entitled to an estimate of how long you should expect to wait in order to receive your treatment.

You're entitled to be notified of the results of any tests or procedures.

Information should be conveyed to you in a way that you're able to understand. As far as possible this includes the right to a competent interpreter. You also have the right to a written summary of any information that is provided to you.

Your right to access to your medical records

In general you're entitled to have access to or copies of your medical records. However, there may be exceptional circumstances in which a doctor is entitled to refuse you access. If this is the case, you must be told of the reason for the refusal.

You have a right to complain about the doctor's refusal to the Privacy Commissioner (see How to make a complaint to the Privacy Commissioner ).

No treatment may be given without your informed consent

Treatment may be provided only if the patient has made an informed choice and given informed consent. Even if a patient has signed a general consent clause, the patient is still entitled to refuse medical treatment or procedures.

However, in exceptional or emergency situations a doctor may be legally justified in performing surgery or providing treatment without the patient's consent.

To be able to give informed consent it is necessary that the patient is competent and capable of making such a decision.

People under the age of 16 are not entitled to consent to medical treatment. However, exceptions may be made if hospital staff are satisfied that patients are mature enough to make the decision for themselves.

Your right to emergency treatment

A hospital must not refuse to give you emergency treatment, unless the appropriate medical facilities or personnel aren't available.

Do I have the right to choose a male or female doctor?

You have the right to express a preference as to who will provide services and to have that preference met where practicable. This indicates that if, for example, a female patient in hospital asks for a woman doctor, the hospital must comply with the patient's wish if this is practicable.

Enforcing your rights under the Code of Health and Disability Services Consumers' Rights

How do I enforce my rights as a patient?

If you have a complaint about your treatment as a patient, you have the right to complain to the Health and Disability Commissioner. But the Commissioner has recommended that you first complain to the particular provider of the health or disability services, as this is likely to be the fastest and most effective way of resolving your complaint. If instead you first complain directly to the Commissioner, it may be that the Commissioner will refer your complaint to the particular provider anyway.

Changes were made to the HEALTH AND DISABILITY COMMISSIONER ACT 1994 on 19 September 2004 to give the Commissioner more flexibility in finding the appropriate way to deal with a particular complaint. It's intended that this will allow more complaints to be resolved without a formal investigation by the Commissioner. These changes are discussed on the Commissioner's website at www.hdc.org.nz (under Publications/Presentations, see "Buddle Findlay HPCA Seminar 2004").

What does the provider have to do in response to my complaint?

When you've complained to your provider, under the Code of Rights the provider must:

  • acknowledge your complaint in writing within five working days
  • try as much as possible to resolve the complaint in a fair, simple, speedy and efficient way
  • keep you informed at regular intervals (at least once a month) about what they are doing with your complaint
  • keep you informed about any relevant complaints procedure you can use, both internal to their organisation and external (this includes going to the Health and Disability Commissioner and to a Health and Disability Consumer Advocate)
  • keep records of your complaint and of the action they take in response to it, and
  • give you all the information they hold that's relevant to your complaint

The provider has 10 working days after it acknowledges your complaint in writing to decide whether it accepts or rejects it. If it decides it needs more time, the provider must decide how much more is needed. If the extra time is more than 20 working days, it must tell you of this decision and the reasons for it.

When it has made a decision, the provider must let you know its decision and also give the reasons for it. It must tell you of any action that it proposes to take in response to your complaint, and any appeal procedure it has set up for complaints.

When can I complain to the Health and Disability Commissioner?

If you're not satisfied with the provider's response to your complaint, you can complain to the Health and Disability Commissioner. But you also have the right to complain directly to the Commissioner at the beginning, rather than complaining first to the particular provider.

How do I complain to the Commissioner?

You can complain in any of the following ways:

  • by writing to the Commissioner's office at:
    • PO Box 1791
      Auckland, or
    • PO Box 12 299
      Wellington

Your complaint doesn't have to be in writing.

The Commissioner's preliminary assessment of your complaint

Law changes introduced on 19 September 2004 give the Health and Disability Commissioner more flexibility in dealing with complaints. After a preliminary assessment, the Commissioner will decide how your complaint can best be dealt with. At that point the Commissioner can:

  • refer your complaint to various agencies or statutory officers, including
  • the relevant professional body (for example, the Medical Council in the case of a doctor)
  • the Accident Compensation Corporation, if you may be entitled to ACC cover
  • the Director-General of Health if public health or safety may be at risk
  • the provider, if there's no question of a risk to public health or safety, for it to resolve your complaint
  • the Chief Human Rights Commissioner, the Chief Ombudsman or the Privacy Commissioner, if the relevant matter seems to come, wholly or partly, within their jurisdiction
  • refer your complaint to a Health and Disability Consumer Advocate to help you and the provider resolve the matter (see below, "How can a Consumer Advocate help me?")
  • call a mediation conference for you and the provider
  • decide to formally investigate the complaint himself or herself
  • decide to take no further action about your complaint

The Commissioner must promptly notify you and the provider of what he or she has decided to do after the preliminary assessment.

The Commissioner can also later revise a preliminary assessment and decide on a different course of action.

It's expected that the Commissioner will formally investigate only in cases of serious breaches of the Code of Rights and that in other cases the Commissioner will use the flexibility under the September 2004 reforms to resolve the complaint at a lower level. The changes allow the Commissioner to call a mediation conference between the parties to attempt to resolve a complaint without first investigating it. They also allow the Commissioner, without investigating the complaint, to refer it to the provider for it to resolve the matter, provided the complaint doesn't raise any public health or public safety issues. This may be appropriate where, for example, a provider such as a District Health Board has already carried out a thorough investigation and is well-motivated to resolve the complaint with the complainant.

Similarly, the Commissioner now has a broader discretion to decide not to take any action on the complaint, including before any investigation or while an investigation is underway. For example, this may be appropriate where the provider has already undertaken a thorough investigation, changed its procedures as necessary, and taken steps to resolve the matter with the complainant.

Formal investigations by the Commissioner

If the Commissioner decides to investigate your complaint formally, he or she must notify you and the provider of this in writing. The Commissioner must also notify the provider of the details of the complaint and inform them that they have 15 working days to make a written response. (The Commissioner can decide to extend this time limit.)

The Commissioner must also notify the relevant professional body (such as the Medical Council in the case of a complaint about a doctor) about the investigation. That body cannot take any disciplinary action under the HEALTH PRACTITIONERS COMPETENCE ASSURANCE ACT 2003 until the Commissioner notifies the body that the matter has been dealt with.

Once the complaint has been investigated, the Commissioner must notify the relevant parties (including any relevant professional body) of the results of the investigation and of what the Commissioner proposes to do.

What if the Commissioner decides there's been a breach?

If after an investigation the Commissioner decides that there was a breach of the Code of Rights, he or she can:

  • report his or her findings to the provider, with recommendations
  • report the findings, with recommendations, to the relevant professional body, to the Accident Compensation Corporation, or to anyone else the Commissioner thinks appropriate
  • complain to the relevant professional body, or help you or any other person who wishes to make a complaint to do so
  • report to the relevant Minister
  • refer the provider to the Director of Proceedings, who will then decide whether to
  • begin proceedings against the provider in the Human Rights Review Tribunal
  • help you (financially or otherwise) to bring proceedings in any professional body or tribunal
  • begin disciplinary proceedings under the HEALTH PRACTITIONERS COMPETENCE ASSURANCE ACT 2003

What can the Human Rights Review Tribunal do about my complaint?

Whereas the powers of professional disciplinary bodies are mainly concerned with taking action against the health professional, the Human Rights Review Tribunal by contrast has powers that can redress matters for you, the patient. For example, the Tribunal can award you damages or take some other action to remedy your complaint.

How can a Consumer Advocate help me?

The role of the Health and Disability Consumer Advocate is to listen to your concerns, give you information about your legal rights, help you identify and clarify the issues, help you consider the options available to you, and support you when you take action. The Advocate will focus on helping you and the health-care provider come to an agreement. But the Advocate is not neutral – their job is to be an advocate for you, the patient.

Cautionary notes
  • As a patient in a hospital it is highly likely that you will be in a vulnerable position and you will probably not be thinking at your best. Therefore you may not be in the best state to make serious decisions. It's particularly important that, if possible, you make yourself familiar with your rights as a patient beforehand.
  • There are certain aspects of hospital practice that you may consider yourself entitled to, but that by law are in fact only concessions and allowances granted by the hospital. For example, a father's presence during birth by caesarean section is at the hospital's discretion; at any time the hospital may order the father out of the operating theatre. Similarly, allowing parents to stay with their children in hospital is at the discretion of the hospital.


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