BETWEEN CULVERDEN GROUP LIMITED First Plaintiff AND IAN ERIC MORTON ANDERSON Second Plaintiff AND THE HEALTH AND DISABILITY COMMISSIONER Defendant

[2001] NZHC 552

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M.1143-SD00

UNDER the Judicature Amendment Act 1972 and s27(1) of the New Zealand Bill of Rights Act 1990

BETWEEN CULVERDEN GROUP LIMITED
First Plaintiff

AND IAN ERIC MORTON ANDERSON
Second Plaintiff

AND THE HEALTH AND DISABILITY COMMISSIONER
Defendant

Hearing: 3 April 2001

Counsel: Mr AG Rowe for the plaintiffs
Mr K I Murray for the defendant

Judgment: 25 June 2001

RESERVED JUDGMENT OF GLAZEBROOK J

Solicitors:
Wells & Co (A Rowe), PO Box 28390, Remuera
Health & Disability Commissioner (K H Greig), PO Box 1791, Auckland
K I Murray, Barrister, PO Box 5516, Wellington

Introduction

[1] The defendant, the Health and Disability Commissioner (“the Commissioner”), proposes to issue a report dealing with a complaint by Mr King. The report concludes that the plaintiffs, Culverden Group Limited (“Culverden”) and Mr Anderson, breached the Code of Health and Disability Services Consumers’ Rights (“the Code”) in a number of respects and in particular by not getting Mr King’s informed consent to his stay in the rest home operated by the plaintiffs. The Commissioner recommends the plaintiffs take a number of actions and proposes to provide the report to the Ministry of Health.

[2] The plaintiffs seek judicial review of the Commissioner’s actions to date and the proposed actions, alleging breach of natural justice, pre-determination and unreasonableness.

Role of Mr King and his family

[3] Mr King, the complainant, was served with the proceedings. I understand that, in accordance with the oral judgment of Laurenson J of 2 November 2000, counsel for the defendant explained to Mr King that he could apply to become a party to the proceedings. Mr King chose not to do so but came to the hearing.

[4] At the hearing he was given another opportunity to apply to be joined. The plaintiffs and the defendant also confirmed they would not seek costs against him if he was joined. Mr King reiterated that he did not wish to be joined as a party but he was present for the whole of the hearing and was given the opportunity to make, and did make, a statement at the conclusion of the hearing.

[5] Mr King’s family were not represented at the hearing. Nor were they present. They were not served with the proceedings as far as I am aware.

The Complaint and its Investigation

[6] On 30 September 1997 Mr King made a complaint to the Commissioner through his solicitor Mr John Lamborn. At the time the office of Commissioner was held by Ms Robyn Stent. The letter of complaint alleged that the plaintiffs were either parties to or aware of the fact that coercion had been exerted on Mr King by his relatives (and more particularly his late wife’s relatives) to enter the plaintiffs’ rest home. The letter also claimed that Culverden exerted pressure on Mr King to meet the costs of care and had withheld some of his belongings pending payment as well as adding further charges for services which Mr King did not need. The letter also alleged lack of informed consent and the administration of medication without consent or reference to Mr King’s existing doctor.

[7] Attached to the letter was a statement apparently made by Mr King to the police in relation to a complaint of assault. In the statement he alleges his relatives forced him into the car and took him to the rest home operated by Culverden. There, he says, he was taken to a room and sedated so that he does not remember much until the following morning

[8] On 12 February 1998 the Commissioner wrote to Mr Anderson, the managing director of Culverden, stating that she had decided to investigate Mr King’s complaint and asking for Culverden’s comments in writing, including all supporting documentation.

[9] The actual complaint letter and its attachments were not annexed but the complaint was summarised as follows -

“On 5 February 1997 Mr Ian Anderson accepted Mr Arthur King to the Culverden Rest Home without Mr King’s consent and without any proper assessment or referral.

At the Culverden Rest Home, on or about 5 February 1997, medical treatment was administered to Mr King without reference to either his General Practitioner or previous medical history. Treatment was administered without Mr King’s informed consent.

Mr Ian Anderson exerted pressure on Mr King to pay for services that he had never consented to nor required.”

[10] The 12 February letter was replied to by Mr Anderson on 18 February 1998. This was termed a general response and there was an invitation to the Commissioner to ask for a more detailed response if necessary.

[11] There was also an interview of Mr and Mrs Anderson by Ms Meffin on behalf of the Commissioner on 27 May 1998. Typed notes of that meeting were prepared by the Commissioner and forwarded to Mr Anderson who made some hand-written alterations which were then forwarded to the Commissioner by his wife. Further information was provided to the Commissioner by Mr Anderson in letters dated 10 and 15 March 1999.

[12] By letter dated 18 October 1999 the Commissioner forwarded to Mr Anderson a document which was described as the Commissioner’s provisional opinion (the “first provisional opinion”) on the complaint. This set out a summary of the facts found after the inquiry and the Commissioner’s opinion on the breaches of the Code committed by Culverden. In the covering letter the Commissioner noted that this was Culverden’s opportunity to clarify or dispute any of the information gathered as a result of the investigation. The letter gave until 5 November 1999 for a response.

[13] Mr Anderson instructed his solicitors to prepare a submission in response. This was forwarded to the Commissioner on 24 November 1999. An extension of time to reply had earlier been sought. The submission expressed a number of concerns about procedural as well as substantive matters. The solicitors also in early December forwarded four pages of Culverden’s admission form.

[14] On 22 December 1999 the Commissioner sent a further letter to the plaintiffs’ solicitors explaining the procedure followed (including that it was not the practice to identify the particular Code rights which may have been breached at the time of the initial notification of the breach). The letter also reminded the plaintiffs that the onus is on providers to show they took reasonable actions in the circumstances to give effect to the Code - see clause 3 of the schedule to the Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996 (referred to below as “the Regulations”). The date for response was stated to be extended to 18 January 2000.

[15] The plaintiffs’ solicitors wrote on 11 January expressing concerns about the 22 December letter. In particular they questioned how the date for response could have been extended when the Commissioner was still considering their earlier submissions. They were advised by telephone on 12 January 2000 that further submissions would still be considered. No further submissions were made.

[16] On 17 February 2000 the Commissioner sent her final opinion (the “first final opinion”) to the plaintiffs’ solicitors. The covering letter advised the plaintiffs of their right to have their response appended to the final opinion.

[17] On 1 March 2000 the defendant was informed that the plaintiffs’ solicitors had been instructed to initiate judicial review proceedings. Attempts were made to settle the matter but these were ultimately unsuccessful.

[18] On 4 March 2000 the office of Commissioner was taken up by Mr Ronald Paterson. In April he decided to conduct a fresh review of Mr King’s complaint and its investigation. The review on the file was conducted by the Commissioner’s senior legal advisor who had had no prior involvement with the case.

[19] On 6 July 2000 a further provisional opinion (the “second provisional opinion”) was sent to the plaintiffs’ solicitors to elicit any comments. These proceedings were then filed and the Commissioner has agreed not to issue his final opinion (the “second final opinion”) until this case is concluded.

[20] The second provisional opinion again set out the factual background (in substantially the same terms as the previous two opinions). It also set out the alleged breaches of the Code, those breaches identified being fewer than the ones set out in the previous two opinions.

[21] The Commissioner in the second provisional opinion concluded that there had been breaches of Rights 3, 4(2), 6(2) and 7(1) of the Code. These read as follows:

“Right 3
“Every consumer has the right to have services provided in a manner that respects the dignity and independence of the individual.”

Right 4(2)
“Every consumer has the right to have services provided that comply with legal, professional, ethical and other relevant standards.”

Right 6(2)
“Before making a choice or giving consent, every consumer has the right to the information that a reasonable consumer, in that consumer’s circumstances, needs to make an informed choice or give informed consent.”

Right 7(1)
“Services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent . . .”.”

[22] The breach of the obligation to get Mr King’s informed consent mainly relates to a finding that Culverden did not give Mr King adequate information about the services but rather provided these to Mr King’s daughter despite knowing there was a history of family tension.

[23] The Commissioner also took the view that the plaintiffs had not proved that they took reasonable actions in the circumstances to give effect to the rights of Mr King and to comply with the duties of the Code - see para 76 of the affidavit of Mr Paterson. The conclusion was that they had not understood their obligations to Mr King and in particular their obligation to get his (as against or, in addition to, his family’s) informed consent. Acting in what they (and his family) may have perceived to be in Mr King’s best interests may have been acceptable in the past, but this cannot excuse breaches of the Code.

[24] Mr Paterson makes a number of recommendations in the second provisional report including a change to Culverden’s admission forms. He also proposes to forward his report to the Ministry of Health and to use the report for education purposes on the Commissioner’s website (but with names and other identifying factors removed).

Issues

[25] The plaintiffs have a number of concerns about the Commissioner’s actions. The first is an alleged breach of natural justice. This mostly relates to alleged breaches by Mr Paterson’s predecessor but, the plaintiffs argue, these breaches cause the second provisional opinion to be flawed also. There is also a complaint of failure to give reasons.

[26] The plaintiffs also allege that the Commissioner failed to take into account relevant considerations, including the plaintiffs detailed submissions, and that the Commissioner took into account irrelevant considerations such as Ministry of Health guidelines which are not standards.

[27] The next allegation is one of unreasonableness. As no particulars are provided in the statement of claim this seems essentially to cover the same grounds as set out above.

[28] The final allegation is of predetermination and bias. This also seems to be a continuation of the claim of breach of natural justice rather than an actual allegation of bias.

The Legislative Framework

[29] The defendant’s office was created by the Health and Disability Commissioner Act 1994 (“the Act”). The long title of the Act provides as follows -

“An Act to promote and protect the rights of health consumers and disability services consumers, and, in particular,

(a) To secure the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights; and

(b) To provide for the appointment of a Health and Disability Commissioner to investigate complaints against persons or bodies who provide health care or disability services; and to define the Commissioner’s functions and powers; and

(c) To provide for the establishment of a Health and Disability Services Consumer Advocacy Service; and

(d) To provide for the promulgation of a Code of Health and Disability Services Consumers’ Rights; and

(e) To provide for matters incidental thereto.”

[30] There is also a purpose provision in the Act itself, s6, which provides as follows -

“The purpose of this Act is to promote and protect the rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights.”

[31] A priority task of the first Commissioner was to prepare the Code, in consultation with relevant groups. The first Code was promulgated in the Regulations and brought into force along with Part IV of the Act dealing with complaints on 1 July 1996. The Commissioner is obliged to keep the Code under review under s14(1)(b). The Commissioner has an educative and advisory function under s14(1)(c), (d), (i)-(l), as well as jurisdiction in respect of complaints under s14(1)(f) and (g).

[32] So far as complaints are concerned, under s35 of the Act it is a function of the Commissioner to investigate any action of a healthcare provider or any disability services provider where that action is or appears to the Commissioner to be in breach of the Code.

[33] There are a number of provisions of the Act which aim to ensure fair procedure. Section 36(2) requires the Commissioner to advise both the complainant and the healthcare provider of the complaints procedure to be adopted.

[34] Section 41 requires the Commissioner to inform the complainant and the healthcare provider of his or her intention to investigate. There is also an obligation to inform the healthcare provider of the details of the complaint and his or her right to submit within a reasonable time a written response in relation to the complaint.

[35] Under s43 the Commissioner must conduct the investigation of a complaint with due expedition and shall inform the parties concerned, as soon as reasonably practicable after the conclusion of the investigation, of the result of the investigation and what action (if any) the Commissioner proposes to take in respect of the complaint.

[36] Section 45 sets out a number of actions the Commissioner may take where he or she is of the opinion there was a breach of the Code, including reporting the opinion with reasons to the health care provider, making of recommendations and reporting to health professional bodies and to the Minister of Health.

[37] Section 67 requires the Commissioner to allow a person a reasonable opportunity to be heard before adverse comment is made and to make a written statement in answer. That statement or a fair and accurate summary of that statement can, at the option of the provider, be appended to the Commissioner’s report.

[38] As regards procedure, s59 provides as follows:

“(1) Every investigation under Part 4 of this Act by the Commissioner may be conducted in public or in private.

(2) Subject to section 67 of this Act,-

(a) The Commissioner may hear or obtain information from such persons as the Commissioner thinks fit, including, where the Commissioner considers that cultural matters are a factor relevant to a complaint or investigation, information from such persons as the Commissioner thinks have knowledge of or experience in those matters:

(b) The Commissioner may make such inquiries as the Commissioner thinks fit:

(c) It shall not be necessary for the Commissioner to hold any hearing.

(3) Subject to sections 41(b) and 67 of this Act, no person shall be entitled as of right to be heard by the Commissioner.

(4) Without limiting any other provision of this Act, the Commissioner may, at any time, if the Commissioner considers that it is necessary or desirable in the public interest (whether for reasons of public health or public safety or for any other reason) that any matter be brought to the attention of any person or authority, refer the matter to the appropriate person or authority.

(5) Subject to the provisions of this Act, the Commissioner and every advocate may regulate his or her procedure in such manner as he or she thinks fit.”

[39] The Commissioner also acknowledges that s27(1) of the New Zealand Bill of Rights Act 1990 is applicable.

Facts

[40] Before setting out the background facts I note the following -

[a] I have not had access to the whole of the Commissioner’s investigation file although some (but not all) of the witness statements have been annexed to affidavits.

[b] I have not heard formally from Mr King.

[c] I have not heard at all from Mr King’s family.

[41] Given the above I only set out what appear to be agreed facts and for the most part I rely on the second provisional report. I also highlight the areas of controversy over the facts between the plaintiffs and the defendant and set out some views on the presentation of the facts by the defendant.

[42] Mr King was admitted to the Culverden Retirement Centre on 5 February 1997. He left the centre on 4 March 1997. The background to that admission is set out below.

[43] Mr King’s wife, after a long illness, died at home on Thursday 30 January 1997. The funeral took place on Monday 3 February 1997. Mr King and the late Mrs King had been living in a house in which the late Mrs King had a life interest. After her death the house reverted to her relatives who did not wish Mr King to remain in the house. There was, it appears, some history of family tension.

[44] The first contact with Culverden was probably on Saturday 1 February 1997 by Mrs Webster who spoke to Mrs Anderson. Mrs Webster is Mr King’s daughter but is married to one of his late wife’s relatives. She made inquiries about the services available at Culverden and their cost. After discussion she booked a room for a week (with a view to longer) from Wednesday 5 February 1997.

[45] On Tuesday 4 February 1997 Mrs Webster confirmed with Mrs Anderson that Mr King would be coming and also had a conversation with Mr Anderson who said he knew Mr King quite well and asked Mrs Webster to reassure Mr King that he would personally assist in any way he could. Mrs Webster told Mr Anderson that Mr King could not remain in the property and that he was extremely distressed about this and had threatened to burn the house down and commit suicide. She was seeking somewhere for him to stay so he could re-orient himself.

[46] Mr King arrived at Culverden at about 4.30pm on 5 February 1997 with Mrs Webster, some other members of his late wife’s family and the Reverend Ray Wicks of Tuakau Union Parish. In the Commissioner’s report there is background information given as to the process of transportation to Culverden. It is not appropriate for this to be set out here in detail, given I have not heard from any of the witnesses. Suffice to say that Mr King alleges he was forced into the car and taken to Culverden without being informed where he was going. Apparently Reverend and Mrs Wicks’ evidence corroborates this to an extent.

[47] Incidentally, in my view this background only has a place in the report if there is evidence that Mr Anderson knew of it. At the least a finding should be made as to Mr Anderson’s knowledge of these alleged events. In addition I would have thought it arguable that Mr King’s relatives should be given a specific right to be heard and to comment in terms of s67 of the Act. Setting out the allegations of Mr King could be construed as adverse comment in their regard.

[48] There is a conflict of evidence between Mr King and Mr Anderson as to the events after his arrival at Culverden. Mr King’s version is that Mr Anderson came out to the car, he was taken to a room and given a sedative. The Commissioner states later in the report that he is unable to conclude that Mr King was given medication against his will (p24). This should be clearly stated at the time Mr King’s statements relating to being given a sedative are set out.

[49] Mr Anderson’s version is that he remained in the car talking to Mr King for some time (and this appears to be corroborated to some extent by the evidence of Reverend Wicks). According to Mr Anderson Mr King was agitated at first and asking him to get his family to take him home. Mr Anderson then says Mr King calmed down and retracted earlier statement about suicide and burning the house down. He then voluntarily accompanied Mrs Anderson to view the room he was to occupy. He expressed satisfaction with the room and remained talking with Mrs Anderson for some time over a cup of tea.

[50] It appears from later in the second provisional report (p.21) that Mr Anderson’s version of events up to this point may have been preferred over Mr King’s. If so then this should be stated when the facts are being set out.

[51] It appears to be agreed between the parties that, in the meantime, the admission procedures were undertaken in the office with Mrs Webster. The Culverden standard admission form is a four page document. The first page of the admission form includes the name, date of birth of the resident and the name of the admitting agent or next of kin. There is provision for the next of kin and admitting agent to sign on behalf of a resident but no provision for the resident to sign. This part of the admission form was signed by Mrs Webster as admitting agent (on the basis she was Mr King’s daughter) and witnessed by Mr Anderson.

[52] The second page of the form is entitled “Standard Terms and Conditions of Contract of Care” and sets out the terms and conditions of care in general terms and provides that the resident and the admitting agent are liable for all fees due to Culverden. There are no specific details about the fees payable. The third page of the form is entitled “Authorisation Form - Health Information - Privacy and Confidentiality” and seeks authority from the resident to collect and disclose personal information to certain persons. The fourth page of the form is entitled “Agents Authorisation Form - Guidelines and Policy for Resident Finances”. This asks a number of questions with provision for a yes/no answer and then provides an area for the resident to sign an authority for the appointment of an agent who will act in the resident’s best interest and an area for the agent to sign. Mrs Webster signed the form accepting responsibility as agent.

[53] Mr King’s signature appears on pages 3 and 4 of a separate admission form. On page 4 Mr King indicates (by striking through the answer “yes”) that he does not wish to retain control of his financial affairs but also that he does not wish either the admitting agent or Culverden to manage his financial affairs. He does, however, appear to go on to appoint Mr Anderson as his agent to manage his affairs. Mr Anderson did not sign the form accepting responsibility as agent.

[54] There is a conflict of evidence in respect of these forms allegedly signed by Mr King. Mr King cannot recollect signing any forms. Reverend Wicks also cannot remember Mr King signing forms in his presence. There is also some conflict in the evidence of Mr and Mrs Anderson as to when the forms were signed.

[55] It appears from para 29 of the affidavit of Mr Paterson, the current holder of the position of Commissioner, that Reverend and Mrs Wicks were interviewed some time after 12 February 1998, thus over a year after the admission to Culverden. The same applies to the Andersons. In assessing the evidence on the signatures this is clearly a factor to be taken into account, as well as any view that may have been formed on the relative credibility and/or reliability of Mr King and Mr Anderson on other matters.

[56] There is then a section of the Commissioner’s report detailing the findings in relation to medication. Given that any findings adverse to Mr Anderson and Culverden on this issue are to be removed from the report, I assume this section will be deleted except to the extent it may be relevant to the other matters or, if left, there will be a statement making it clear that the actions of Culverden are not considered a breach of the Code.

[57] There appears to be no dispute that Mr King, during his stay at Culverden, was visited (apparently not in a professional capacity) by the general practitioner who had attended his late wife and that he also visited his solicitor, Mr Lamborn.

[58] A dispute appears to have arisen in late February 1997 as to who was responsible for the payment of Culverden’s fees. This is evidenced, according to the Commissioner, by a letter from Culverden to Mrs Webster from Culverden dated 21 February 1997 enclosing an account for the fees payable on behalf of Mr King.

[59] This dispute appears to have culminated in Mr King leaving Culverden on 4 March 1997 as evidenced by a letter to Mr King’s solicitors enclosing a formal statement of account and stating that Mr King was responsible for payment. This letter was copied to Mrs Webster on 5 March.

[60] On 7 March 1997 Mr King’s solicitor sent payment of the greater part of the account. This was made on a “without prejudice” basis, without any acknowledgement of liability but it was stated that Mr King was anxious that Culverden was not the “meat in the sandwich”.

[61] Mr Anderson acknowledged receipt of the payment on 8 March 1997 but noted that further payments were due. On 17 March Mr Lamborn advised Mr Anderson that Mr King had no agreement with Culverden to provide rest home services having been taken to Culverden involuntarily and thus had no liability for the sums of money claimed.

[62] The Commissioner then refers to a letter received by Mr King on 22 August 1997 from the Elder Abuse Resource Team. It is not at all clear to me why this has been included in the summary of findings.

Breaches of Natural Justice

[63] The first allegation in the Statement of Claim relating to the alleged breach of natural justice is that the plaintiffs were not informed prior to the investigation commencing and the making of the first provisional opinion, that it was alleged that Culverden had breached Rights 2, 3, 4, 5, 6 and 7 of the Code (which were the provisions set out in the first provisional opinion as having been breached). As such the plaintiffs were not heard in relation to those specific allegations during the investigation.

[64] This appears to me to show a fundamental misconception as to the procedure followed by the Commissioner. The Commissioner, in accordance with her obligations under ss36(2) and 41 of the Act, informed Culverden that the complaint was to be investigated by her. She informed Culverden of the outline of the complaint and invited Culverden to submit a written response in relation to it.

[65] The Commissioner is not required under the Act to set out the specific provisions of the Code alleged to have been breached at this stage. Indeed, it could be seen as improper for the Commissioner, before conducting the investigation, to have provided even tentative suggestions or conclusions as to the Rights that may have been breached. Any conclusions as to breach should only be reached after the investigation and not before. The plaintiffs were (quite properly) given full opportunity to comment on the conclusions after the first provisional opinion was released. As such this cannot be a ground of review for the plaintiffs.

[66] The next complaint is that the Commissioner’s statement of the complaint as first put to the plaintiffs was different to that stated in the first provisional opinion. The complaint here is that two additional sentences were added to the third complaint that had not been placed before Culverden and, therefore, there had been no opportunity to comment on these. Even though these sentences were taken out of the first final opinion the plaintiffs are concerned that they would have coloured the view of the Commissioner.

[67] Certainly it was unacceptable that the description of the complaint set out in the first provisional opinion differed from that set out initially for Culverden. I understand that the procedure of the Commissioner has since changed and that the full text of the complaint would, almost inevitably, be put to the provider for comment. This is by far the better practice to follow. Any summary of a complaint risks leaving out matters (as happened here) and thus could lead to matters being taken into account that have not been the subject of comment by the provider.

[68] In this case also the summary failed to convey the full seriousness and tone of the complaint which could have led to the response of Culverden being less complete at the initial stage than it would have been had the full text been provided. As such, Culverden may well have had cause for complaint at this stage.

[69] The matter, however, has now been reviewed by both the new Commissioner and one of his staff, neither of whom had been involved in the previous investigation. If a further opportunity is given for full comment at this stage (and in this regard see the recommendations in para 104 below), then any prior breaches of natural justice would in my view be remedied. Given the history of the matter it will be very important that any such comments provided by Culverden are fully and clearly answered by the Commissioner (whether in the report or separately) so that it is clear that they have been considered and taken into account.

[70] It is also preferable that the Commissioner, where it is possible, makes clear findings on the matters identified above as being areas where versions of events differ. At present the failure to make findings leaves unclear the exact factual basis leading to the Commissioner’s conclusions.

[71] The next complaint is that the second provisional opinion was very similar to the first provisional opinion (and in addition that the first final opinion had only minimal changes made to it). This appears to be a concern that the submissions of the plaintiffs have not been properly considered.

[72] The principles of natural justice (and indeed the Act itself) require that certain persons have a right to be heard. This does not presuppose that what is said by them must be accepted. Having said this, in this case it is clear that most of the matters Mr Anderson raised are traversed in the statement of facts. As indicated above, there are perhaps one or two areas of conflict where the factual finding of the Commissioner could be made clearer. It cannot, however, be said that Mr Anderson’s version of the facts has not been taken into account. In respect of the conclusions the second provisional opinion is, quite clearly, very different from the first provisional opinion in that the rights that are alleged to have been breached are fewer and the grounds for those breaches seem more clearly set out. As such it is difficult to argue that the plaintiffs’ submissions in respect of the conclusions reached in the first provisional opinion have not been taken into account.

[73] The plaintiffs could perhaps be forgiven for thinking that their submissions on the alleged Code breaches had not been taken into account between the first provisional opinion and the first final opinion, given that very few changes to the conclusions were made at this stage and no explanation was provided to the plaintiffs as to why this was the case. While not strictly a requirement for natural justice purposes it is clearly good practice to provide at least some explanation, especially as the Commissioner has an educative role and it is thus important to try and ensure providers understand their obligations under the Code.

[74] The plaintiffs have now been given a further opportunity to be heard through the opportunity to comment on the second provisional opinion. In addition, the fact that the second provisional opinion has made extensive changes in respect of the Rights alleged to have been breached must again remedy any concerns related to the first two opinions.

[75] The next two complaints in respect of the failure of natural justice relate to the failure to traverse the evidence and the failure to address issues of credibility. These have been dealt with above. In my view the evidence has been traversed fully (or at least the plaintiffs have not been able to point to any specific evidence that has not been considered). In terms of credibility findings I have suggested above that the Commissioner attempt to come to a finding where possible. However the Commissioner states in his affidavit at para 56 that he has mostly based his findings on Mr Anderson’s version of the facts. This could perhaps be made clearer in his opinion. If this is the case (and it does appear to be so) then any failure to make express findings on credibility would not impugn the opinion.

[76] The final concern under this head is that the second provisional opinion fails to give adequate reasons for the final conclusions. It is difficult to see the basis for this complaint. The Commissioner has taken some trouble to give reasons for his decision. What the plaintiffs’ complaint appears to mean is that the reasons given are reasons that the plaintiffs do not agree with. It is here that the limits of judicial review clearly come into play. This is not an appeal and the conclusions reached cannot be impugned in this regard.

Failure to take into account relevant considerations

[77] There is some repetition under this head with the matters that have already been dealt with above. The main matters that are alleged not to have been taken into account are the involvement of Mr King’s family in his staying at the rest home, Mr King’s acceptance of the plaintiffs’ services and his continued voluntary use of the rest home over an extended period, and the fact that, by signing the admission forms, Mr King was involved, to some extent, in his own admission.

[78] It is difficult to see that these matters were not taken into account. Quite clearly the involvement of Mr King’s family in his staying at the rest home was paramount in the Commissioner’s mind in that one of the major concerns was that it was a member of Mr King’s family who had completed the admission formalities and received full information about the services (including the cost of those services) when it was not clear that she was acting as authorised agent for Mr King. Indeed, given the family tension which was known to Mr Anderson, it should have been evident that she was probably not in fact acting as his agent.

[79] There was also clearly consideration of Mr King’s acceptance and continued use of the rest home, but the conclusion was that this was tainted by the failure to give full information at admission (especially full information about the cost of the services). In fact, the conclusion was that, when Mr King realised the full cost of the services and that he was expected to meet those costs rather than his family, he left the rest home. The evidence to support that conclusion should perhaps be set out more clearly.

[80] The same applies to Mr King’s involvement in his admission to the rest home and his signing of the admission documentation. For a start, it is unclear whether the Commissioner is able to resolve the conflict of evidence on this point. Even if he were able to resolve it, this would not remedy the Commissioner’s main concern, being that Mr King was not given full information, especially about the cost of the services on admission. Mr King clearly only signed pages 3 and 4 of the admission documents, with his wishes in respect of page 4 being in any event unclear and even contradictory, as set out above.

[81] It is also alleged that the opinion does not take into account Mr King’s actions through his lawyer of paying the plaintiff. It is difficult to see that payment of an account without admission of liability and on a “without prejudice” basis can be decisive. It may indicate that Mr King at that stage was concerned that Culverden was paid, given his comments through his solicitor that he did not wish Culverden to be the “meat in the sandwich” in his quarrel with his family, but it does not show that Mr King had been informed of the costs of the services before he accepted them.

[82] The plaintiffs appear to have concerns about Mr King’s motives in making the complaint so long after the events and the payment. To an extent these are understandable concerns. However, as there has been a finding of breach of the Code through not giving full information as to costs, Mr King’s motives in bringing the complaint are of limited relevance.

Taking Into Account Irrelevant Considerations

[83] In respect of the Commissioner’s conclusion on Right 4(2), it is alleged that the Commissioner failed to recognise that the Ministry of Health published standards are guidelines only and not legal standards.

[84] I note that the Commissioner will not now be making a finding that standard nine relating to medication was breached. The other Ministry of Health standard that is alleged to have been breached deals with making sure that prospective residents are properly prepared for admission, including giving prospective residents opportunities to visit the home and meet the manager and staff before admission. It is not entirely clear whether that standard applies to respite or temporary care in the same manner as to more permanent care. This may be something the Commissioner needs to follow up, given that Mr King’s residence was apparently to be of a temporary nature.

[85] In para 57 of Mr Paterson’s affidavit he recognises that the Ministry standards are not directly binding on Culverden, but he points out that they are applied by the Ministry when licensing rest homes under the Old Peoples’ Homes Regulations 1987. As such, Mr Paterson is of the view that these are relevant standards in terms of Right 4(2) of the Code. This appears to me to be a reasonable view.

[86] I understand there are also best practice standards promulgated by the Licensed Care Providers, an industry group representing licensed rest homes. The purpose of the standards is to ensure compliance with Ministry of Health and Telarc Limited audit standards - see para 74 of Mr Anderson’s affidavit. These standards may also be standards that the Commissioner could have regard to. Mr Anderson points out that it is an accepted requirement of those standards that a licensed care provider has a duty to provide care to persons who present at their facility and are in need of care. There appears no doubt that Mr Anderson had a genuine concern for Mr King’s wellbeing and a desire to do the best for him in what was a very difficult family situation.

[87] Nevertheless, it seems to me that the Commissioner was entitled o come to the conclusion that the plaintiffs had breached Right 4(2) and that the plaintiffs had not taken reasonable actions to comply with the duties of the Code, even taking into account the best practice standards referred to above. Given Mr Anderson’s knowledge of the family situation, he should at the very least have explained the provisions of the Code and the rights that Mr King had to Mrs Webster when she telephoned, even if he did not feel able to contact Mr King personally regarding his admission into the rest home. He could also have suggested to Mrs Webster that she bring over Mr King for an initial visit. Any reluctance or obvious misunderstanding on Mrs Webster’s part could then have been dealt with in the appropriate manner before Mr King was brought to the rest home.

[88] As stated in para 63 of Mr Paterson’s affidavit, while the situation on the evening of 5 February may have been one of some difficulty given that Mr King was obviously distressed and his family was insisting that they would not take him back home, there was a reasonable window of opportunity to the plaintiffs to give effect to Mr King’s rights before that time, given that the first contact had occurred on 1 February. At that stage other alternatives could easily have been considered by Mr King and possibly also by his family once Mr King’s rights were fully explained to them. In addition Mr King was clearly competent to make his own decision on the evening of 5 February. Indeed the plaintiffs do not appear to suggest otherwise.

Unreasonableness

[89] As stated above, there are no specifics as to the way in which the plaintiffs consider the conclusions reached in the second provisional opinion to be unreasonable. I do, however, note that there does not seem to be, even in the material that has been put by the plaintiffs before the Court, any evidence that a full explanation was given to Mr King as to the costs of the services. As such, the conclusion that Mr King did not give informed consent cannot be unreasonable. It seems the only conclusion possible. The fact that Mr King allegedly signed the form relating to financial management (and as noted above in a somewhat inconsistent manner) does not alleviate this concern.

[90] Indeed, even if he had signed the full admission form, as this only gives very general terms and conditions rather than specifics as to fees, a conclusion that informed consent had not been given would still not have been unreasonable. Information as to the cost of services must be highly relevant to the decision to enter a rest home, especially where, as here, Mr King was expected to bear the costs personally.

[91] The plaintiffs seek to rely on the fact that that Mr King, after seeing his room and speaking for some time alone with Mrs Anderson, agreed to enter the rest home. If this had happened after he was fully informed of all matters related to the rest home, including the fees, then it could well have been deemed sufficient for informed consent.

[92] However, the Commissioner in my view may possibly still have been entitled to come to the conclusion that informed consent had not been obtained, given the background of family dissension, the fact that Mr King had not been contacted and his rights explained to him before arrival at the rest home and given that other alternatives had not been discussed with him. The fact that Mr King was distressed and the fact that his family were refusing to take him home, (which Mr Anderson seeks to use as justification for his actions), should have made the plaintiffs even more alert to ensuring that Mr King was fully cognisant of his rights. This does not mean that Mr Anderson would have to have turned Mr King away and thus breach what he sees as his contractual and moral obligations. It merely would mean that he should have taken pains to ensure that Mr King was fully informed (including about any alternatives to Culverden).

Predetermination and bias

[93] The allegations under this head are not really allegations of predetermination and bias as indicated earlier. They are rather an extension of allegations that there has been a breach of natural justice.

[94] The views expressed in the first provisional opinion were arrived at after the investigation and after the Commissioner had heard from both Mr King and Mr Anderson and a number of other witnesses. As said earlier, the fact that the Commissioner did not change her opinion in the first final opinion does not indicate that the plaintiffs’ submissions had not been taken into account. Rather it could merely mean they had not been accepted. In any event, not taking into account submissions would rarely provide a foundation for an allegation of predetermination or bias, although it may show a breach of natural justice.

[95] In terms of the present Commissioner, he has given a second provisional opinion which, in terms of the conclusions drawn, is very different from the previous Commissioner’s report and which was written after a full review of the file using officers not involved in the original investigation. No allegation of predetermination or bias could lie against him.

Recommendations of Commissioner

[96] Given the finding that Mr King was not informed about the costs in advance, this Court does not consider the recommendation that the fees be refunded to Mr King unreasonable, although perhaps some allowance for the toll calls should be made. If there had been a finding of a positive decision to stay on after full disclosure of fees then there should possibly also have been an adjustment for fees incurred after such disclosure.

[97] The requirement for a written apology would also not necessarily be unreasonable in most circumstances. The fact that Mr King’s complaint has not been upheld in the terms in which it was made may, however, mean that the recommendation is not appropriate in these circumstances or that the terms of the suggested apology would need to be carefully considered.

[98] It is also not unreasonable to recommend that the plaintiffs change their admission form. Where a person is competent they should be involved in the admission process. While in some circumstances, where it is clear that a relative is acting as admission agent with the express authority of the prospective resident, it may be appropriate for a prospective resident to be spared the detailed admission formalities, it should always be ensured that the resident is fully informed of all matters that may be relevant (and even if a relative is agreeing to pay the costs, or there will be a fee subsidy, the cost of services would still be a relevant consideration that the prospective resident has a right to be informed of).

[99] One has to share the Commissioner’s concern that the fact that the Culverden form has no provision for the resident to sign on the first page could well indicate an underlying problem whereby the rights of relatives are seen as more important than the rights of a resident or prospective resident. While it would certainly be best practice to make sure that relatives are also fully informed, these rights are not enshrined in legislation. The rights of prospective residents are protected by the Code which is promulgated under the Act. These rights must be given effect to as a priority.

[100] The other proposed action is the sending of a copy of the opinion to the Ministry of Health. In para 78 of Mr Paterson’s affidavit he indicates that he considered it appropriate that the Ministry of Health as the body responsible for licensing rest homes and, presumably now ultimately responsible for funding them, should be informed of the findings in respect of the plaintiff. He notes that it is his usual practice to copy breach reports involving rest homes to the Ministry of Health. He considers that this practice is important and consistent with his statutory functions.

[101] The reasons given by Mr Paterson for sending the report to the Ministry of Health are, in my view, quite consistent with his statutory functions. There do not appear to have been any special reasons put forward showing that the Commissioner ought not to follow his usual practice and the plaintiffs have not been singled out for special treatment. As such the Court will not interfere with the Commissioner’s decision.

[102] I understand too that a copy of the report with all details of names and any other identifying factors will be posted on the Commissioner’s website. Given the educative functions of the Commissioner this appears to be a totally reasonable action. While the Commissioner has the power to publish a report with names, it is my understanding that the Commissioner does not intend to do that in these circumstances. This again appears reasonable. It would not be appropriate in my view to publish the report with names, given the history of the matter, the nature of the complaint and the particular circumstances in which the breach occurred.

Actions the Commissioner should now take

[103] I understand that the Ministry of Health applies provisions on medication set out in a separate publication. The conclusion is that there has been no breach of these in respect of Culverden’s management of Mr King’s medication.

[104] As a matter of process, given that the Commissioner has now conceded that one of the breaches alleged will not be in the final report, he should provide a third provisional report to the plaintiffs with the changes consequent on this and give them a full opportunity to comment and a reasonable period in which to do so. He should then ensure that he clearly deals with all of the plaintiffs’ submissions. A draft of the final report should be provided to the plaintiffs. A further opportunity to comment should then be given in accordance with s67(a)(i). It is only at the end of this process that the Commissioner should release his final report, giving the plaintiffs the opportunity to append a statement in accordance with s67(a)(ii) and s67(b) should adverse findings still be made.

[105] I would like to make it clear that as a general rule the process the Commissioner follows as explained in his affidavit would satisfy the rules of natural justice and the provisions of the statute (taking account of the fact that the process is an investigative as against adversarial one). A Court would not generally interfere with any fair procedure followed by the Commissioner, given the rights of the Commissioner to regulate procedure - see s59(5) of the Act.

[106] In this case, however, the procedure set out above in para 104 should be followed. In particular, there should be a detailed response to submissions received, given the possible difficulties with natural justice in respect of the first provisional opinion and possibly the first final opinion as indicated above and the concerns of the plaintiffs that arose in respect of this.

[107] It is true that under s43 of the Act the Commissioner is required to conduct an investigation with due expedition and to inform the parties concerned as soon as reasonably practical after the conclusion of the investigation the result of the investigation. This provision arguably has already been breached in this case given that it took the Commissioner some four months (admittedly including the Christmas period) to forward the complaint to Culverden. It then took some 20 months to produce the first provisional opinion and conduct what really appears to be a relatively simple investigation. As such any further delays are not of major moment.

Costs

[108] The plaintiffs having largely failed in their action for judicial review, costs of 2B are awarded to the defendant.

Delivered at 2.15pm on 25 June 2001