Director of Proceedings v Te Whatu Ora Health New Zealand

[2024] NZHC 495

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE CHILD AND THE CHILD’S PARENTS OR REFERENCES TO THE HEALTH OF THE CHILD.

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2023-483-033

[2024] NZHC 495

IN THE MATTER OF

an application under s 104 of the Contract and Commercial Law Act 2017

BETWEEN

THE DIRECTOR OF PROCEEDINGS

Applicant

AND

TE WHATU ORA – HEALTH NEW ZEALAND

First Respondent

[REDACTED]
Second Respondent

[REDACTED]

Third Respondent

On the papers:

Counsel:

Applicant in person

G Weir for First Respondent Second Respondent in person Third Respondent in person

Judgment:

8 March 2024

[REDACTED] JUDGMENT OF GRAU J

A failure to provide health services of an acceptable standard

[1][Redacted] and [redacted] are the parents of [redacted], a minor [redacted].

THE DIRECTOR OF PROCEEDINGS v TE WHATU ORA – HEALTH NEW ZEALAND [2024] NZHC 495

[8 March 2024]

[2]        It is common ground between the parties that, because of [redacted]’s premature birth and complications [redacted] subsequently experienced, there was an increased risk that [redacted] would develop [redacted].

[3]        Treatment of [redacted] is highly successful with timely diagnosis and treatment. Because [redacted] is one of the leading causes of [redacted] in developed countries including New Zealand, all babies at risk of developing [redacted] should be screened.

[4]        It is also common ground that [redacted]’s care did not include adequate screening for [redacted], with the result that [redacted]. Because of [redacted] risk of developing [redacted], [redacted] should have been referred for ongoing [redacted] screening, and that the delay in arranging for such a serious error, undoubtedly leading to the loss of opportunity for timely diagnosis and treatment.

[5]        The Whanganui District Health Board (DHB) has accepted it failed to provide services of an acceptable standard, and it accepts its system failings led to [redacted], which was most probably preventable if usual and prescribed screening processes had been followed.

A complaint to the Health & Disability Commissioner

[6]        [Redacted]’s treatment was the subject of a complaint to the Health & Disability Commissioner (Commissioner) in February 2019.

[7]        In June 2021, following investigation of the complaint, the Commissioner found that the DHB had failed to provide services to [redacted] with reasonable care and skill, and had breached [redacted] rights under the Health & Disability Commissioner (Code of Heath & Disability Services Consumers’ Rights) Regulations 1996 (the Code). The DHB was referred to the Director of Proceedings (Director) to decide whether proceedings should be taken. The Director’s preliminary view was that a proceeding under s 50 of the Health & Disability Commissioner Act 1994 (the

HDC) would be appropriate, and could be resolved appropriately by negotiated agreement.1

The proposed agreement

[8]        The Director has deposed as to the process and its outcome. She has been actively involved with this matter since it was referred to the Director’s office.

[9]        Following “without prejudice” discussions between the Director’s office and Te Whatu Ora, conditional agreement was reached that the Director will seek a public declaration from the Tribunal that Te Whatu Ora, through the actions of the DHB, breached [redacted]’s rights under the Code. That declaration will be based on a summary of facts which has been approved by the parties. An anonymised version of the summary of facts would be annexed to the Tribunal’s decision.

[10]      The parties also approved a consent memorandum requesting the Tribunal to issue the declaration by consent and on the papers, and issue an order prohibiting publication of the names and identifying details of [redacted] and [redacted] parents. The consent memorandum would also advise the Tribunal that the issue of compensation/damages has been resolved by negotiated agreement.

[11]      Conditional agreement has been reached, whereby Te Whatu Ora will make a payment on a confidential basis to [redacted], intended to compensate [redacted] for loss of dignity.   The compensation paid to [redacted] will be held on trust, in the   TT Trust for [redacted] benefit. The trustees of the TT Trust are [redacted]’s parents. The proposed settlement deed (the draft deed) has been prepared on the basis that its terms will remain confidential to the parties, apart from a number of expressed rights of notification.

1      The proposed proceedings transferred to Te Whatu Ora when the Pae Ora (Healthy Futures) Act came into force on 1 July 2022.

The application

[12]      The Director applies under s 104 of the Contract and Commercial Law Act 2017 (the Act) for approval of the draft deed, a copy of which has been provided to the Court. The Court’s approval is required because [redacted] remains a minor.

Statutory provisions for approval of settlements on behalf of minors

[13]      Section 104 of the Act provides for court approval of the compromise or settlement of claims by minors. It states:

104     Claim that is not subject of proceeding

(1)An agreement for the compromise or settlement of a claim is binding on the minor if––

(a)the agreement was entered into by the minor, or on the minor’s behalf by a person who in the opinion of a specified court is a fit and proper person to do so; and

(b)the claim is not the subject of a proceeding before any court in New Zealand; and

(c)the agreement or a release of the claim is in writing and is approved by a specified court.

(2)In this section, specified court means––

(a)a court (other than the Disputes Tribunal) in which a proceeding could be taken to enforce the claim; or

(b)in the case of a claim that could not be the subject of a proceeding in New Zealand, a court in which a proceeding could be taken to enforce a similar claim in New Zealand.

[14]      Section 106 provides for an application for court approval to be made by, or on behalf of, a minor, or by any party to a compromise agreement.

Fit and proper person

[15]      The court must be satisfied in terms of s 104(1)(a) that the person entering into the agreement on behalf of a minor is a fit and proper person to do so.

Appropriate terms of agreement

[16]      Court approval is a requirement that the court has sufficient information as to how the terms of agreement, including importantly the amount of any settlement were arrived at to enable the court to approve such terms.

The evidence

[17]      [Redacted] ([redacted]’s mother) and [redacted] ([redacted]’s father), have both filed affidavits recording their satisfaction with the terms of the proposed settlement. It is clear that they are fit and proper persons to enter into the proposed agreement on behalf of their child.

[18]      The Director has filed an affidavit explaining the process of reaching the settlement.

Approval of the settlement

[19]      I am satisfied on the evidence that the terms of the settlement proposed are appropriate. I approve the terms of the agreement to be executed by the parties as attached as Annexure A to the originating application in this proceeding.

Name suppression and the issuing of this judgment

[20]      The Director seeks a final order prohibiting the publication of the names and identifying details of [redacted], [redacted] and [redacted]. [Redacted] and [redacted] consent to such an order.

[21]      I am satisfied that such an order should be made. I also consider it appropriate to prohibit publication of references to the health of [redacted], to provide a further safeguard against identification of [redacted].

Orders

[22]      I approve the terms of the deed of settlement to be executed by the parties as attached as annexure “A” to the originating application in this proceeding.

[23]      I make a final order prohibiting the publication of the names or identifying details of [redacted], and [redacted], or references to the health of [redacted].

Grau J

Solicitors:
HDC, Wellington for Applicant