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.

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.

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".

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.

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 Māori 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.

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.

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.

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.

"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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Review of New Zealand's Health and Disability Commissioner Act and Code of Rights.

This column discusses some key issues considered in the third review of New Zealand's Code of Patients' Rights and its complaints regime, a system which is generally working well. The review considered whether a broad access right should included in the Code, and supported a narrower right in the disability area. In a notable omission the Code has never included a right to the confidentiality of health information.

Selenoether macrocyclic chemistry-syntheses and ligand properties of new small-ring Se(3)- and Se(2)N-donor macrocycles.

Simultaneous dropwise addition of thf/EtOH solutions of Se{(CH(2))(3)OTs}(2) and o-C(6)H(4)(CH(2)SeCN)(2) or NCSe(CH(2))(3)SeCN to a suspension of NaBH(4) in thf/EtOH at room temperature yields gram quantities of the 13- and 12-membered triselenoether macrocycles (1) and (2) respectively in high yield. The 11-membered ring (3) is obtained similarly by simultaneous dropwise addition of thf/EtOH solutions of Na(2)[o-C(6)H(4)Se(2)] (itself prepared by NaBH(4) reduction of the polymeric [o-C(6)H(4)Se(2)](n)) and Se{(CH(2))(3)OTs}(2) to a suspension of NaBH(4) in thf/EtOH. The small-ring, potentially tridentate Se(2)N(pyridyl)-donor macrocycles (4) and (5) were obtained in essentially quantitative yield by simultaneous dropwise addition of thf/EtOH solutions of 2,6-bis(bromomethyl)pyridine and either o-C(6)H(4)(CH(2)SeCN)(2) or NCSe(CH(2))(3)SeCN to a suspension of NaBH(4) in thf/EtOH at room temperature.

Criminal allegations in disciplinary cases involving health practitioners.

Recently the Supreme Court of New Zealand decided that the standard of proof in disciplinary proceedings against a registered health practitioner is the ordinary, civil "balance of probabilities" standard, even in cases where criminal or serious allegations are made. Adopting recent House of Lords' case law, it rejected the existence of a third standard of proof, the "flexible" or "heightened" civil standard commensurate with the seriousness of the issue involved. Neither did the court consider direct application of the criminal, "beyond reasonable doubt" standard appropriate in disciplinary proceedings.