EXECUTIVE SUMMARY

4. There is concern that inquiries under the Health and Disability Services Act 1993 could be better focused on inquisitorial, rather than adversarial approaches. An adversarial approach encourages inquiries to take a long time to be completed and at greater cost than is necessary for the discovery of the truth. The key issue is the process by which witnesses in an inquiry are questioned.

5. To ensure that inquiries maintain an inquisitorial focus I propose that provisions adapted from s39-42 of the Resource Management Act 1991 be used to modify the process by which inquiries under health sector legislation are conducted.

6. This proposal will promote inquiries to be inquisitorial, that discover the truth of a matter, maintain fair processes in relation to witnesses, and are completed within time and cost commensurate with the nature of the issue under investigation. Mechanisms for appeal and ensuring transparency to the public are also proposed.

7. The modification will not reduce, but will enhance the range of options available to Ministers when they are considering investigating an issue in the health sector, ranging from a Commission of Inquiry under the Commissions of Inquiry Act 1908 to informal requests for information.

8. The key aspect of the proposal is to limit the presently unlimited direct cross-examination of witnesses in an inquiry by lawyers. Witnesses to an inquiry would only be questioned directly by the inquiry team. Cross-examination by other parties could only occur with the leave of the inquiry team, who would need to be satisfied that cross-examination was necessary to protect a person's interests and that there was no other way to protect those interests. In turn the inquiry team would need to be able to justify their position if they refused a request to directly cross-examine.

9. The proposal only concerns inquiries conducted under the current s47 of the Health and Disability Services Act 1993, which will be repealed and replaced by the New Zealand Public Health and Disability Bill. It will not change other methods of inquiry which will continue to be available.

BACKGROUND

10. Cabinet has previously agreed [CAB(00)M11/1A(3)] that provisions similar to those in s47 of the current Health and Disability Services Act 1993 will be included in the new health sector legislation. S47 allows the Minister or Director-General of Health to appoint one or more people to conduct an inquiry or investigation into the purchase or provision of health services or disability services or both.

11. Examples of health inquiries are:
    1. the Cervical Screening Inquiry, which is a Ministerial inquiry where the appointees have the powers of a Commission of Inquiry
    2. the inquiry into physiotherapy performed on babies at National Women's Hospital which was a Director-General initiated inquiry.

12. It has previously been proposed to Cabinet that the process of conducting inquiries in the health sector be modified. In response to that proposal, the Minister of Health was asked to report back to the Cabinet Social Policy and Health Committee on the results of further consultation with the Crown Law Office, and other agencies, on the appropriateness of adapting the provisions in s39-42 of the Resource Management Act for use in health and disability sector inquiries and investigations [CAB (00) M15/9].

13. This paper provides further advice in response to this invitation, and sets out:
    1. the broader context within which inquiries are undertaken, including discussion over the difference between adversarial and inquisitorial approaches, the impact of these approaches on witnesses, and the cost implications
    2. a proposal for conducting inquiries under the new health and disability sector legislation which uses an inquisitorial approach
    3. the implications of this proposal including discussion of issues related to the New Zealand Bill of Rights, the right of witnesses and parties to appeal and maintaining transparency to the public over decisions made.

CONDUCTING AN INQUIRY IN THE HEALTH AND DISABILITY SECTOR

14. There are a number of mechanisms available at present to investigate an issue in the health sector:
    1. The Minister of Health can request that a Commission of Inquiry or Royal Commission be established under the Commissions of Inquiry Act 1908 by Order in Council. A Commission of Inquiry has the full powers of a district court (including the ability to award costs).

    2. an investigation or inquiry conducted under s47 of the Health and Disability Services Act 1993 may be ordered by either the Minister of Health or the Director-General of Health. In some instances a s47 inquiry may be given the powers of a Commission of Inquiry by the Minister of Health (but does not have the ability to award costs).

    3. formal negotiated accountability arrangements e.g. the funding agreement between the Minister of Health and the HFA, can be used to require information to be provided in relation to an issue

    4. work co-operatively with health sector providers and independent persons to investigate an issue which has been brought to their attention.

15. Options i and ii involve using formal legislative mechanisms.

16. The options above provide a hierarchy of methods for investigating an issue. The intention is that each method uses a different approach according to the issue being investigated. Any issue may be escalated up the hierarchy. For example, an issue which is initially investigated informally at the request of a Minister may end up needing a full Commission of Inquiry.

17. This paper is concerned only with the process of inquiries conducted under health sector legislation (option ii above). No change is proposed to the other methods of inquiry proposed above, these will continue to be available.

18. In particular, it needs to be noted that this paper does not propose any changes to the Commissions of Inquiry Act 1908 or to the processes for conducting inquiries under that Act. Ministers will continue to be able to establish Commissions of Inquiry where they believe this is necessary, and Commissions of Inquiry will continue to have the powers of a District Court.

SECTION 47 INQUIRIES

19. This paper is concerned with the conduct of inquiries under s47 of the Health and Disability Services Act 1993, (which will be replaced by the New Zealand Public Health and Disability Bill). S47 allows for the appointment of persons to conduct an inquiry into any aspect of the purchase or provision of health services or disability services or both. The Minister or Director-General of Health appoints the inquiry team, sets the terms of reference for the inquiry and the inquiry team then undertakes its work. S47(5) allows that, subject to any provisions set by the Minister or Director-General of Health, the inquiry team may determine their own procedure.

20. The current provisions in the Health and Disability Services Act do not provide safeguards for ensuring that, where appropriate, an inquisitorial rather than an adversarial approach will be adopted in an inquiry. The proposed change would ensure that the appropriate inquisitorial approach is taken to health sector inquiries.

21. This will be achieved by a modified legislative mechanism for s47 inquiries providing the inquiry team with more clearly defined abilities to determine an appropriate process. In determining its process, the inquiry team would be guided by legislative principles for the conduct of inquiries and would be accountable for maintaining a fair process according to those principles.

22. The proposal to change the conduct of s47 inquiries (which is discussed in detail later in this paper) will ensure that the emphasis for inquiries is inquisitorial in all cases, as this should be so given the fundamental differences between inquiries and adversarial litigation that are discussed below.