LO1: Demonstrate understanding of legal institutions and processes in health care (500

words).

Kera is a healthcare provider subject to the Code of Health and Disability Services Consumers' Rights
(CHDSCR) because she is an occupational therapist who claims to provide healthcare services. Occupational
therapists are registered under the Health Practitioners Competence Assurance Act 2003 (HPCAA), which
means that every provider, including Kera, is subject to upholding and fulfilling the CHDSCR (Occupational
Therapy Board of New Zealand [OTBNZ], (n.d.). Kera breaches Right 4(2) by breaking an occupational
therapist's professional and ethical standards (Health and Disability Commissioner (CHDSCR) Regulations
1996 [HDC(CHDSCR) 1996]). According to the Code of Ethics for Occupational Therapists (CEOT) and
Guideline on Professional Boundaries for Occupational Therapists, sexual relationships with current health
consumers are inappropriate, and even if the relationship is consensual, it perpetuates a power imbalance
that can potentiate abuse (OTBNZ, 2016; OTBNZ, 2022). As defined in clause 4 of CHDSCR, Kera exploited
Ari sexually and financially, breaching Right 2 (HDC(CHDSCR) 1996). Kera has the means to control the
relationship with Ari by being in a position of power. Kera turned the relationship sexual and also exploited
the vulnerable Ari for $3000; as stated in the COET, it is inappropriate to influence a consumer for monetary
gain (OTBNZ, 2016). The Health and Disability Commissioner (HDC) is experienced in New Zealand
healthcare and disability services. They understand the needs of healthcare consumers, recognise cultural
and social necessities, and can resolve complaints made by healthcare consumers (Health and Disability
Commissioner Act 1994 [HDCA]). The HDC reviews the CHDSCR and makes recommendations for changes;
they promote, educate, and make health consumers aware of their rights and how they are enforced
(HDCA). The complaint process begins by submitting a complaint; the HDC reviews it and either refers it to
advocacy services to resolve with the provider directly, refers it to a more suitable agency, formally
investigates the complaint, closes the complaint, or provides recommendations and an explanation (HDCA).
If the HDC investigates a breach of CHDSCR and a breach is found, several recommendations are made to
improve the provider or organisation. However, if there has been a severe breach in the CHDSCR, the case
is referred to the Director of Proceedings (DoP) and will take the provider to the Health Practioner
Disciplinary Tribunal (HPDT) or the Human Rights Review Tribunal (HRRT) if there are issues of Privacy Law,
Human Rights, and breaches of the CHDSCR (HDCA). Outcomes for Kera breaches can be non-monetary and
monetary. A declaration under HDCA s 54(1)(a) can be made that Kera's conduct caused a breach. An order
restraining Kera from breaching the code again can be made under HDCA s 54(1)(b). An order under HDCA s
54(1) can make Kera undergo specific training. Compensation under HDCA s 54(1)(c) would have Kera repay
the $3000 in accordance with HDCA s 57(1)(a) seen in Director of Proceedings v Nikau. Further
compensation under HDCA s 57(1)(c) could result in Kera paying between $30,000-$50,000, as seen in
Director of Health and Disability Proceedings v Peters, with a maximum of $350,000 (Ministry of Justice,
2023). Finally, under HDCA s 54(2), additional costs are to be paid to the DoP ranging between $7500-
$15,000 (Director of Proceedings v Nikau).

LO2: Analyse the role of civil and criminal law on health care policy and practice (500
words).

Nick's conviction would be made known to the Paramedic Council under HPCAA s 67(a) since his offence of
Common Assault is punishable by imprisonment of up to one year (Crimes Act 1961). The notice of
conviction would be given to the Professional Conduct Committee (PCC) to consider if his conviction
reflects adversely on his fitness to practice. If there is concern for public safety, the Council could impose
suspension orders under HPCAA s 69A(1) whilst the investigation takes place. The PCC decides on
recommendations to give the Paramedic Council; this could include a competency review, referral to the
health committee, letter of counsel, and review of scope (Paramedic Council). The PCC can lay a charge
against Nick under HPCAA s 80(3)(b), which will be heard by the Health Practitioners Disciplinary Tribunal
(HPDT) under HPCAA s 91(1)(b). After conducting a hearing on a charge laid under HPCAA s 91, Nick is liable
for discipline under HPCAA s 100(1)(c). There are two elements of the charge made under HPCAA s 100 (1)
(c); these are whether the conviction met the threshold of imprisonment laid out in HPCAA s 100(2)(b) and
that the conviction reflects adversely on Nick's fitness to practice as a paramedic. According to HPCAA
s100(2), discipline is granted if a conviction under HPCAA s 100(1)(c) can be related to an offence that is
punishable by imprisonment for three months or longer. A certified copy of Nick's conviction would show
Common Assault. Under s 196 of the Crimes Act, the maximum term of imprisonment is up to one year,
fulfilling HPCAA s 100(2)(b). The second element requires proof that Nick has breached his "fitness to
practice". A member of a PCC in 771/Nur15/330P stated that the term encompasses conduct that could
erode the trust and confidence that the public has in the practitioner or profession. Cases involving
violence and physical harm inherently discredit the paramedic profession; the Paramedic Council Code of
Conduct principle 8 requires those to maintain the trust and confidence of the public. Similarly, cases
748/Pod15/325P and 441/DH11/190P involved convictions of assault where the HPDT found that the
practitioner's actions reflected adversely on their "fitness to practice". Since both elements were
established and proven, Nick could be subject to penalties under HPCAA s 101. Nick would likely face
penalties for censure, conditions on his scope of practice, and contributions to the cost of the PCC and
HPDT. Conditions that the tribunal could impose include taking an anger management course, supervision
whilst practising, and therapy sessions. These conditions should be looked at in ways that identify the cause
of the conviction through rehabilitation and the protection of the public (Robert v a Professional Conduct
Committee of the Nursing Council of New Zealand). The costs of the PCC and HPDT vary; the payment Nick
may have to contribute could be all of the costs or a percentage, for example, 50% of the costs. Looking at
comparable cases, mitigating factors, and the overall seriousness of misconduct (Robert v a Professional
Conduct Committee of the Nursing Council of New Zealand). Nick would most likely pay 25-40% of the
costs. The penalties listed should be proportionate to the nature of the offence to deter others in the
healthcare profession from such behaviour.

LO3: Critique cases or legislation related to consumers’ rights based on scholarly research
(500 words).

In 19HDC01659, a Podiatrist unprofessionally and unethically operated on Mrs A; the Commissioner

believed there was a breach of the CHDSCR and referred the case to the DoP, who declined to take it any
further. While the code offers complainants legal entitlements, Mrs A was misinformed and mistreated by
the Podiatrist, resulting in unsatisfactory outcomes in providing remedies for Mrs A and the public (Skegg,
2011). Studies suggest that around one-third of HDC complaints involve consumers feeling dissatisfied with
the outcome of the complaint (Bismark et al., 2011). The Commissioner could have had the power to
enforce recommendations with legal orders to ensure re-education, rehabilitation, and compensation. In
order to differentiate between HRRT and HPDT, the Commissioner's power would be more concise, with
less punishing power, and focus on rehabilitative measures that can satisfy the complainant and restore
trust in the relevant profession—for example, ordering providers with mandatory training, therapy
sessions, specific conditions for returning to work, or specific fines for each breach of right. Moore and
Mello (2017) found themes around reconciliation for those subjected to medical injury, which is
accountability and learning. There was a strong desire to prevent future harm; change only comes when
practitioners and organisations take responsibility for their actions (Moore & Mello, 2017). Practioners'
needs must also be met, requiring fair and equal justice; rehabilitation will help practitioners return to
their practice and eliminate poor behaviour (Bialocerkowski & Wells, 2010). However, there are no written
definitions for rehabilitation in the CHDSCR; current rehabilitation concepts are based on precedent, which
allows for consistent decision-making ((Bialocerkowski & Wells, 2010). Bialocerkowski and Wells (2010)
found that more severe offences in HPDT cases are less likely to receive rehabilitation. The Commissioner
could handle less severe offences that pose less risk to public safety and require rehabilitation. The HDC
complaint process is currently unfair, and the Commissioner's power to control the complaints' fate is
broad and largely concealed. The lack of appeal processes in the governing legislation does not allow
contention to the Commissioner's decision. Since the Commissioner's process works less like a tribunal or
judicial proceeding, the ability to have legal order would require the current HDC process to change so that
the Commissioner's opinions and recommendations are fair and equal (Moore & Mello, 2017). Adding a
legally qualified person to the Commissioner's role would help maintain fairness, allowing aggrieved
consumers to confront and practitioners to defend their cases, facilitating better rehabilitation for
practitioners (Skegg, 2011). It is within the Commissioners' power to recommend that an apology be
written, which can either benefit both parties or not (Moore & Mello, 2017). Proper apologies that feel
remorseful help to restore forgiveness but often are not a substitute for other forms of remediation
(Moore & Mello, 2017). Subsequently, practitioners felt the apologies were inadequate to restore trust or
put things right. However, the only option available during the HDC process was to express remorse and
remedy their actions (Wilkinson & Marshall, 2021).

LO4: Examine the implications of case law and legislation for your current or future health
care practice (500 words).

As a paramedic, I am a registered health professional under the HPCAA. It is crucial to obtain consent
before providing services, both ethically and legally. According to the CHDSCR, Right 7(1), it is necessary for
Jacob to make informed choices and give informed consent. In the situation where Nikki provides consent
on behalf of Jacob, I need more than this to accept it, as I have not attained legal consent. As per Right
7(2), consumers are protected and entitled to make informed decisions, and in the absence of any
information regarding Jacobs's capacity to provide consent, it can be assumed that he is capable of doing
so. If I were to provide services to Jacob legally, the CHDSCR would require me to attain Jacobs's level of
competence. Competence is a measure of Jacobs' capacity to consent to services. Right 7(3) allows me to
provide services to Jacob in a reduced competency state whilst always retaining the right to make
informed decisions to the extent of his ability to do so. The CHDSCR does not explicitly explain the standard
for determining competence; therefore, a description of what competence is guided by how the law
interprets it (Skegg et al., 2015). Judging a person's competence is shaped by legal considerations,
reflecting social values adopted to protect these rights (Skegg et al., 2015). Re T (Adult: Refusal of
Treatment) provides the view that capacity can still exist but has to be weighed appropriately against the
value of such refusal of treatment. In Jacobs's case, a decision to refuse services can have severe
consequences that may require higher levels of competence to accept. Determining capacity and if it is
reduced is difficult. The most crucial part of decision-making is understanding the decision that will be
made (Skegg et al., 2015). A person must understand the nature of the services being provided and be able
to comprehend the information being given. If it was determined that Jacob has diminished competence,
services provided must be in his best interest. Even though Nikki is Jacobs's partner, consent cannot be
provided by a next of kin or spouse on his behalf (Re T (Adult: Refusal of Treatment)). However, as his
partner, Nikki, may have pertinent information regarding his views on specific services, Nikki can be asked
whether or not certain services are appropriate for Jacob to ascertain his views under Right 7(4)(b). As the
provider, I must weigh the expectations given by Nikki to determine what is reasonable for Jacob in his
diminished state (CHDSCR). Services can be provided to Jacob if his capacity to consent is measured, his
views ascertained, and his best interests are upheld (CHDSCR).
LO5: Present work at the appropriate academic standard (applies across assessment)

Bialocerkowski, A., & Wells, C. (2010). Legal rehabilitation of health professionals in New Zealand.
International Journal of Therapy and Rehabilitation, 17(4), 186–194.
https://doi.org/10.12968/ijtr.2010.17.4.47310

Bismark, M., Spittal, M. J., Gogos, A., Gruen, R. L., & Studdert, D. M. (2011). Remedies sought and obtained
in healthcare complaints. BMJ Quality & Safety, 20(9), 806–810. https://doi.org/10.1136/bmjqs-
2011-000109

Crimes Act 1961

Directors of Health and Disability Proceedings v Peters [2006] NZHRRT 36 (25 September 2006)

Wilkinson, J., & Marshall, C. (2021). Health practitioner experience of Health and Disability Commissioner
investigations. Journal of Primary Health Care (Online), 13(3), 213–221.
https://doi.org/10.1071/hc21026

Edwards (HPDT, 748/Pod/325P, 9 November 2015)

Golding (HPDT, 771/Nur15/330P, 18 December 2015)

Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations
1996

Health Practioners Competence Assurance Act 2003

Janssen (HPDT, 441/DH11/190P, 22 December 2011)

Ministry of Justice. (2023, October 4). Human Rights Review Tribunal.

https://www.justice.govt.nz/tribunals/human-rights/#:~:text=Awarding%20damages&text=Awards
%20are%20typically%20for%20injury,same%20as%20the%20District%20Court.
Moore, J., & Mello, M. M. (2017). Improving reconciliation following medical injury: a qualitative study of
responses to patient safety incidents in New Zealand. BMJ Quality & Safety, 26(10), 788–798.
https://doi.org/10.1136/bmjqs-2016-005804

Occupational Therapy Board of New Zealand. (2022). Code of Ethics for Occupational Therapists.
https://otboard.org.nz/document/6150/7569%20OTBNZ%20–%20Code%20of%20Ethics.pdf

Occupational Therapy Board of New Zealand. (2016). Professional Boundaries.

https://www.otboard.org.nz/document/4844/Professional-Boundaries-V3.pdf

Re T (Adult: Refusal of Treatment) [1993] Fam 95

Robert v a Professional Conduct Committee of the Nursing Council of New Zealand [2012] NZHC 3354

Skegg, P. D. G. (2011). A Fortunate Experiment? New Zealand’s Experience With a Legislated Code of
Patients’ Rights. Medical Law Review, 19(2), 235–266. https://doi.org/10.1093/medlaw/fwr010

Skegg, P. D. G., Paterson, R., Manning, J., Dawson, J., Peart, N. S., Delany, L., & McDowell, M.
(2015). Health law in New Zealand.

Te Kaunihera Manapou Paramedic Council. (n.d.). Code of Conduct.

https://www.paramediccouncil.org.nz/common/Uploaded%20files/Standards/220422%20Code
%20of%20Conduct%20A5%20Spread%20-%20Website.pdf

Wilkinson, J., & Marshall, C. (2021). Health practitioner experience of Health and Disability Commissioner
investigations. Journal of Primary Health Care (Online), 13(3), 213–221.
https://doi.org/10.1071/hc21026