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Wall, Jesse --- "In what sense 'rights'? Principles of justice and the Code of Patients' Rights" [2016] OtaLawFS 33; Law, ethics, and medicine: essays in honour of Peter Skegg 293

Last Updated: 31 May 2019

12 IN WHAT SENSE ‘RIGHTS’? PRINCIPLES OF

JUSTICE AND THE CODE OF PATIENTS’ RIGHTS

Jesse Wall

As is often noted, New Zealand has a unique approach to lapses in skill, care, and attention in the context of the provision of healthcare.1 This approach has two separate features: compensation of personal injuries on a no-fault basis2 and a statutory complaints process.3 Professor Peter Skegg’s article “A Fortunate Experiment”4 provides perhaps the most balanced assessment of the latter. Although his article largely praises the ‘Code of Patients’ Rights’,5 a careful reader will nonetheless detect a number of softly-spoken reservations. Here, I wish to pursue further one of these reservations. Skegg notes, under the heading ‘In What Sense Rights?’, that:6

Only a tiny proportion of aggrieved consumers can in practice obtain damages, or any other legal remedy, in consequence of even an admitted breach of Code. Nor is there any criminal liability for the breach of the Code ... However, the Code in conjunction with other relevant legislation provides complainants with various legal entitlements – and most importantly a statutory complaints process – that they did not have previously.

If a ‘right’ is properly understood as representing reasons for a duty-bearer to act in a particular way that has a particular normative structure, and if there are few

1 See PDG Skegg “A Fortunate Experiment? New Zealand’s Experience with a Legislated Code

of Patients’ Rights” [2011] Med L Rev 235; J Manning “New Zealand’s Remedial Response to Adverse Events in Healthcare” 16 TLJ 120 at 127; J Manning “Access to Justice for New Zealand Health Consumers” (2010) 18 JLM 393; R Paterson “The Patients’ Complaints System in New Zealand” (2002) 21(3) Health Affairs 70.

2. Accident Compensation Act 2001; see K Oliphant “Beyond Misadventure: Compensation for
   Medical Injuries in New Zealand” [2007] Med L Rev 357.
3. Health and Disability Commissioner Act 1994; Health and Disability Commissioner (Code
   of Health and Disability Services Consumers’ Rights) Regulations 1996.

4 Skegg “A Fortunate Experiment?”, above n 1.
5 At 266: “The provision of a legislated Code of Rights has transformed New Zealand’s

medico-legal environment. In contrast to the ‘experiment’ that led to its introduction a decade and a half ago, New Zealand’s experience with a legislated Code of Rights warrants its characterisation as a fortunate experiment.”
6 At 239 – 240.

consequences for the duty-bearer if he or she fails to observe the right, then Skegg is right to ask ‘in what sense are they rights?’

In this chapter I aim to answer this question. I suggest that the Code of Patients’ Rights (Code) does contain ‘rights’, but the rights in the Code exist in isolation. That is, ‘rights’ in isolation from a conception of justice. This renders a uniquely pragmatic, rather than principled, approach to lapses in skill, care, and attention in the context of the provision of healthcare.

This discussion will unfold through five sections. I start by (1) explaining how the principle of retributive justice is inapplicable to the Code whilst the Code is concerned with objective and impersonal standards. I will then (2) discuss how the Code is partitioned from considerations of distributive justice and, as a result, isolated from the duty of reparation. To complete the survey of principles of justice, I then (3) suggest that the Code is isolated from the principle of corrective justice on the basis that the Code holds healthcare providers to account only for their infringement of patients’ rights and not the outcomes of the infringement. I will then turn to consider (4) whether the Code can be understood as a Code of Patients’ Rights. I argue that, although the Code contains ‘rights’, the rights exist in normative isolation (from norms of retributive, distributive or corrective justice). This explains why the remedial response to an infringement of a Right contained in the Code is so minimal (and why Skegg is right to question their rights-status). Finally, by way of conclusion, I (5) consider how my characterisation of the Code as existing in normative isolation is able to explain the function of the Health and Disability Commissioner.

WRONG DOING vs DOING THE WRONG THING

Both the rights contained in the Code, and the duties formulated under the tort of negligence, concern objective standards. For instance, Right 4(1) affirms that every patient “has the right to have services provided with reasonable care and skill”,7 and the tort of negligence inquires into whether a healthcare provider “acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art”.8 The standard is objective, is concerned with reasonable care and accepted standards, and does not inquire into the knowledge, intentions, or the awareness of risk, of the healthcare provider

Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996, Schedule, cl 2, Right 4(1).

Bolam v Friern HMC [1957] 2 All ER 118 at 121; see J Herring Medical Law and Ethics (4th ed, Oxford University Press, Oxford, 2012) at 107.

in question. The standard is also impersonal, insofar as the healthcare provider’s particular circumstances and attributes are irrelevant to whether the standard of care was observed or adhered to.

The objective standard reflects the fact that the Code (and the tort of negligence) aim to govern the relationship between a healthcare provider and a patient.9 The focal point is a concern for the fair interactions between persons.10 Under either the Code or the tort of negligence there is no greater concern for the circumstances of the healthcare provider than there is for the plight of the patient. The equal concern for both participants to the interaction renders an objective standard of conduct,11 such as a duty-to-provide (under negligence) or a right-to-have (under the Code) services of a reasonable standard of care and skill.

In the context of failures to provide healthcare services of a reasonable standard of care and skill, Bismark and Dauer suggest that the motivations that underscore decisions to seek legal redress include “inflicting harm on the wrongdoer, even when such harm does not benefit the victim”.12 Such harm, according to the study:13

... serves as vengeance, as expression of personal or social outrage, as moral dessert and as restoration of the equilibrium between good and evil that was upset by the bad act.

Manning interprets this motivation as “the desire to see erring practitioners punished, face professional discipline or otherwise called to account”.14

There are three distinct motives here that require untangling. First, it is possible to be motivated by a sense of retribution, that those who have acted wrongfully ought to suffer a detriment that is proportionate to their wrongdoing. As I will explain shortly, the principle of retribution is inapplicable to failures to observe an

9 A Beever “Corrective Justice and Personal Responsibility in Tort Law” (2008) 28(3) OJLS 475

at 477.

10 HE Smith “Modularity and Morality in the Law of Torts” (2011) 4 JETL 1 at 1: “The main difference between property and torts is in their basic unit of analysis:...tort law takes more direct aim at acts and activities (which I will lump together as “actions”), in the sense that it focuses on conduct that potentially causes injury to others.”.

11 Beever “Corrective Justice and Personal Responsibility in Tort Law”, above n 9, at 791; EJ Weinrib The Idea of Private Law (Harvard University Press, Cambridge (Mass), 1995) at 63 66.

12 M Bismark and EA Dauer “Motivations for Medico-Legal Action” (2006) 27 The Journal of Legal Medicine 55 at 67.
13 At 67.
14 Manning “Access to Justice for New Zealand Health Consumers”, above n 1, at 394.

objective standard of care. Second, legal claims may be motivated by a sense that a professional ought to face disciplinary action. Breach of professional standards will either raise the spectre of retribution or discipline (as above) or distinct questions of professional competency. As Bismark and Dauer themselves note, “competence reviews have an educational, rehabilitative focus...and are not intended to be a punitive measure”.15 Third, the motivation that the healthcare provider “otherwise [be] called to account”,16 is itself a vague notion, which we will nonetheless return to (below).

Let us for now focus on legal action motivated by a sense of retribution (that those who have acted wrongfully ought to suffer a detriment that is proportionate to their wrongdoing). In terms of pursuing a complaint for a breach of the Code or pursing a legal action under tort, a sense of retribution is an irrelevant motivation. It may be an observable motivation that can explain why patients seek legal redress, but it is a basis for action that has no corresponding relationship with either the Code or tort law. To understand why the principle of retribution does not correspond with the law we need to draw a distinction between “doing something wrongful” and “doing the wrong thing”.17 As Gardner explains, “doing something wrongful” (wrongdoing or acting wrongfully) “is a breach of a duty”, and as such, doing something wrongful is to act against “a reason with doubly special categorical and mandatory force”.18 To fail to provide healthcare services at a level of reasonable care and skill is to act against a reason (that has categorical and mandatory force).

However, failure to adhere to an objective standard does not amount to ‘doing the wrong thing’. To do the wrong thing is to do something that is unjustifiable or inexcusable. That is, to act contrary to reasons, all things considered. To ‘do the wrong thing’ is to act against reasons all things considered, beyond merely acting against the reasons for action that an objective duty of care represents. A breach of an objective duty may be wrongful (and thereby attract moral and legal consequences) but it does not necessarily amount to doing the wrong thing (and thereby does not attract moral censure or a punitive legal response).

Mere failure to adhere to an objective standard does not attract moral sanction or censure. This is because, without assessing whether the actor in breach of a duty also did the wrong thing (all things considered), we are unable to identify

15 Bismark and Dauer “Motivations for Medico-Legal Action”, above n 12, at 66.
16 Manning “Access to Justice for New Zealand Health Consumers”, above n 1, at 394.

17 J Gardner “Wrongs and Faults” in AP Simester (ed) Appraising Strict Liability (Oxford University Press, Oxford, 2005) 51 at 55.
18 At 55-57.

an instance of ‘a wrong act’ that then attracts a detriment or harm that can be proportionate to the actor’s culpability. However, it does not follow that there is no place for retributive justice in the context of the provision of healthcare. In terms of the Code, exemplary damages are available for “flagrant disregard” of a consumer’s rights.19 More broadly, since the criminal law is concerned with intentional and reckless acts or omissions, the criminal law has the apparatus to identify culpable acts in a clinical setting. As Paterson commented (as a Health and Disability Commissioner in ruling on a complaint following the death of a baby), “there is a place for criminal law in the clinical setting where a health practitioner kills a patient by reckless acts or omissions”,20 but not in cases of unexpected death following gross failure to comply with a negligence standard.21

Moreover, it does not follow that there are no normative or legal consequences to failing to adhere to an objective standard (discussed below). The point, simply put, is that something beyond the mere failure to meet an objective and impersonal standard is required for the appropriate application of the principle of retributive justice. This is because something beyond objectively unreasonable conduct is required before we can treat the conduct as culpable or blameworthy conduct. The Code, as a set of objective standards, is in this way isolated from the principle of retributive justice.

2. WRONGFULLY CAUSED LOSS vs WRONGFUL LOSS (TOUT COURT)

Although the Code and the tort of negligence are both concerned with objective standards of skill, care, and attention, they differ in a fundamental way. By virtue of the statutory bar on the award of compensatory damages under the Accident Compensation Act 2001,22 a breach of a Right under the Code cannot be redressed with recourse to an award for compensatory damages. Instead, compensation for a ‘treatment injury’ is available independently of identifying a breach of the Code.23 For the tort of negligence, in contrast, compensatory damages for personal injury are dependent upon identifying a breach of duty and identifying a causal connection between the breach and the recoverable loss. The statutory

19 Health and Disability Commissioner Act, ss 52(2) and 57(1)(d).

20 R Paterson “From Prosecution to Rehabilitation: New Zealand’s Response to Health Practitioner Negligence” in D Griffiths and A Sanders (eds) Bioethics, Medicine and the Criminal Law: Medicine, Crime and Society (Cambridge University Press, Cambridge, 2013) 229 at 244-245.
21 At 245.
22 Accident Compensation Act 2001, s 317.
23 Accident Compensation Act 2001, s 20(2)(b).

entitlements to compensation under the Accident Compensation Act 2001 and legal recourse to compensatory damages under the tort of negligence address an injured patient’s need for “financial compensation or some other intervention to ‘make the patient whole again’”.24

Although a wrongfully injured patient is compensated under either a no-fault compensation scheme or through general damages under tort law, the fundamental difference is that the duty to compensate (or ‘duty to repair’) is an agent-relative duty under tort law and an agent-neutral duty under a no-fault compensation scheme. For tort law, there is a “normatively significant connection” between a healthcare provider’s wrongful action and the outcome of the wrongful action (discussed further below).25 Because of the normative significance of the healthcare provider’s causal contribution to the wrongful loss, the duty of reparation is a duty that is imposed on the healthcare provider. The duty is agent-relative in this sense. In comparison, in New Zealand the connection between wrongful action and the duty to repair the losses caused by that action is severed, suppressed or “superseded”;26 the duty is imposed upon a party other than the wrongdoer and is therefore agent-neutral.27

The agent-neutrality of the duty of reparation follows from the pursuit of distributive justice for personal injuries under a no fault compensation scheme. Given that the cost of personal injuries are a burden that can rest on several different bearers, one normative response to the cost of personal injuries is to ask how should these burdens be allocated fairly between the parties who could potentially bear them.28 A no-fault compensation scheme is premised upon a response to

24 Bismark and Dauer “Motivations for Medico-Legal Action”, above n 12, at 55. See also, at 57: “This restorative function focuses on the victim, with at best a secondary concern for the impact on the wrongdoer. Restoration typically involves monetary compensation, though other forms of intervention sometimes are more appropriate.”
25 SR Perry “The Moral Foundations of Tort Law” (1992) 77 Iowa L Rev 449 at 497.

26 JL Coleman “Justifiable Departures From Corrective Justice” Risks and Wrongs (Oxford University Press, Oxford, 1992) 386 at 403. For example, at 403: “The view I am suggesting is that whether or not corrective justice itself imposes moral duties on individuals in a community will depend on other practices that are in effect. The reason is this. Corrective justice links agents with losses. It provides individuals with agent-relative reasons for acting. These reasons for acting can be superseded by other practices that create reasons for acting, both agent-neutral and agent-relative ... The content of the duty and the reasons for acting to which it gives rise do not follow logically from the nature of the right to repair, but from the normative practices in place with the community.”

27 At 403; See also J Wall “No-fault Compensation and Tort Law’s Reciprocal Normative Embrace” (2016) New Zealand Universities Law Review (forthcoming).

28 J Gardner “What is Tort Law For? Part 1” (2011) 30(1) Law and Philosophy 1 at 9: “Norms of distributive justice are to be understood on the ‘geometric’ model of division. There are several

this distributive justice question, that it is the community at-large which “must protect all citizens...from the burden of sudden individual loss” from personal injuries.29 For personal injuries, this principle of community responsibility is given normative priority over the normatively significant connection between wrongful action and the duty to repair.

As I have detailed elsewhere, the effect of viewing personal injuries as raising a question of distributive justice that can be addressed through a norm of community responsibility is to reconfigure what is ‘wrongful’ about a personal injury.30 The explanation, briefly put, suggests that ‘wrongful losses’ that follow from a personal injury are no longer “characterised as wrongful with reference to a particular wrongdoing that causally contributed to it”.31 Rather, losses that follow from a personal injury are “wrongful tout court” or “wrongful vis-a-vis the world at large”.32 In other words, the losses that follow from a treatment injury are ‘wrongful losses’ where the wrongfulness of the loss is determined by a norm that is independent of the causal contributions to the loss (such as a norm of community responsibility).33 Once the wrongfulness of the loss is reconfigured as wrongful tout court, the duty to repair the wrongful loss is an agent-neutral duty, and the duty of reparation can be, and is, discharged by a third party.

As a result, the rights under the Code are partitioned from distributive justice considerations; questions as to the infringement of Patients’ Rights (under the Code) and questions as to compensation for losses from treatment injuries (under ACC) are separate questions. Duties of reparation are nonetheless imposed and discharged, albeit discharged by a third party who has no causal connection with the loss. To that extent, both tort law and no-fault compensation schemes impose duties of reparation – they are able to satisfy the need for ‘restoration’34 – although

potential holders of certain goods or ills and the question is how to divide the good or ills up among them”; citing Aristotle, Nicomachean Ethics [1131b 12–15].

29 Royal Commission of Inquiry into Compensation for Personal Injury in New Zealand Compensation for Personal Injury in New Zealand; Report of the Royal Commission of Inquiry (Government Printer, Wellington, 1967) at [55].
30 Wall, above n 27.

31 SR Perry “The Mixed Conception of Corrective Justice” (1992) 15 Harv JL & Pub Pol’y 917 at 923.
32 At 922.

33 See Wall “No-fault Compensation and Tort Law’s Reciprocal Normative Embrace”, above n 27: “That is the effect of The Woodhouse Report’s ‘double argument’ (or any sound argument) under the umbrella of community responsibility: the loss suffered by P is wrongful as measured against a standard that is independent of D (such as norms of reciprocity, risk-distribution, equity etc.)”.
34 Bismark and Dauer “Motivations for Medico-Legal Action”, above n 12, at 57.

they impose these duties on different duty-bearers. Whilst they may achieve the same general function, they do so through the imposition of fundamentally distinct duties.

3. INFRINGEMENT ACCOUNTABILITY vs OUTCOME ACCOUNTABILITY

There is an important consequence of the duty of reparation being discharged by a party that has no causal connection with the losses that are to be repaired. To appreciate this consequence, we need to return to the private law’s equal concern with the interests of the parties to an interaction. Recall that objective standards of care, attention, and skill provide the basis of a fair interaction between two parties (here, healthcare providers and patients). Prior to any wrongdoing, we can posit a normative equality between a healthcare provider and patient (that is, an equality with regards to the normative basis of fair interaction).35

Where a healthcare provider fails to adhere to the objective standards of care, attention, and skill, the normative equality between the healthcare provider and patient is displaced. This normative inequality raises a question of corrective justice. Given that, as between the parties to the interaction, “one of them has gained certain goods or ills from, or lost certain good or ills to, another”, corrective justice requires that the transaction “be reversed, undone, counteracted.”36 Hence, one response to a healthcare provider’s failure to adhere to an objective standard of healthcare provision is to view the interaction as creating an inequality that requires correction. The duty of reparation is then a way in which the wrongful interaction is ‘reversed’ or ‘counteracted’.

Whilst only the parties to the interaction (the healthcare provider and the patient) remain within our normative calculus, the duty of reparation is agent-relative. This is because the infringement of the right and the duty of reparation are connected. As Weinrib explains, the imposition of the duty of reparation on the defendant:37

... reflects the fact that even after the commission of the tort the defendant remains subject to the duty with respect to the plaintiff’s right. The defendant’s breach of the duty ... does not, of course,

35 Weinrib The Idea of Private Law, above n 11, at 76: “Aristotle’s corrective justice presupposes the equality of two parties to a transaction. The problem is: in what respect are the parties equal? This question is fundamental. Corrective justice serves a normative function: a transaction is required, on pain of rectification, to conform to its contours”.
36 Gardner “What is Tort Law For? Part 1”, above n 28, at 9.
37 Weinrib The Idea of Private Law, above n 11, at 135.

bring the duty to an end, for if it did, the duty would – absurdly – be discharged by its breach.

The reason why the parties to the interaction are the sole focus (under the principle of corrective justice) is because of the normative priority of the standard of fairness that governs the interaction (c.f. the above mentioned normative priority of community responsibility). When a healthcare provider fails to adhere to an objective standard of care, the healthcare provider “violates a normative bond not with the world at large but specifically with the person to whom the [healthcare provider] owed the duty”.38 Hence, “the normal reason why” a healthcare provider is subject to a duty of reparation is that the duty “constitutes the best-available conformity with, or satisfaction of, the reasons why [the healthcare provider] had that obligation” to adhere to an objective standard of care.39 In other words, it is because a healthcare provider owed a duty to a patient, which was then breached, that the healthcare provider is subsequently under a remedial duty (that is ultimately based on the reasons for the existence of the duty in the first place).

This explanation of an agent-relative duty of reparation is predicated upon a normatively significant connection between the actions of a healthcare provider and the losses suffered by a patient. Where we recognise a normatively significant connection between actions and outcomes we encounter a broad conception of ‘accountability’, and where we limit our appraisal to the actions that infringe rights we encounter a narrow conception of ‘accountability’. It is one thing to hold a healthcare provider to account for their actions where their actions infringe a patient’s rights. We can call this infringement-accountability. It is then another thing to hold a healthcare provider to account for the outcomes of their actions (where their actions infringe a patient’s rights). We can call this outcome-accountability.

If we accept that healthcare providers should be outcome-accountable, then we can map the continuation of the reasons for imposing a duty of care, skill, and attention to the imposition of the remedial duty of reparation. It is in this way that corrective justice is concerned with a “framework of rights and responsibilities between individuals” whilst also accepting “the normative relevance of wrongful losses”.40 There are reasons to adhere to the objective standards of care imposed by tort law (the framework of rights and duties), and these reasons continue to generate a duty to repair the wrongful losses that are incurred as a result of a failure

38 At 143.
39 Gardner “What is Tort Law For? Part 1”, above n 28, at 33-34.
40 JL Coleman “The Mixed Conception of Corrective Justice” (1992) 77 Iowa L Rev 429 at 435.

to adhere to the standards of care (because of the normative relevance of wrongful losses).

The continuation of reasons (from reasons to adhere to the duty of care to reasons to perform the duty of reparation) is sustained by the notion that we appropriately attribute to a person responsibility for the consequences of their actions. There are various explanations of why we hold others to be ‘outcome responsible’ or ‘outcome accountable’. For example, Perry suggests that:41

... our status as moral agents requires us to acknowledge certain... outcomes of our choices to act as ours; we are their authors, and they are properly attributed to us as agents. It is not just that we may choose to acknowledge such outcomes as ours; we are required to do so.

The general contention here is that without considering the outcomes of actions, our moral scrutiny of others becomes extensionless42 or our legal judgment has “no area of application”.43 Our understanding of moral agency must be understood, to some extent, with reference to the outcomes of our actions. That is why “society imposes outcome responsibility” by “allocating credit for good outcomes of action and discredit for bad ones”.44

The Code, in contrast, is only concerned with the rights and responsibilities between healthcare providers and patients and is only able to hold a healthcare provider to account for their actions where their actions infringe a patient’s rights (infringement accountability). This is a consequence of the reconfiguration of the wrongfulness of a patient’s losses (that follow from a personal injury) under a no-fault compensation scheme. The ‘wrongfulness’ of a patient’s loss in the sense that it was caused by wrongdoing has been superseded by the ‘wrongfulness’ of the patient’s loss vis-a-vis the world at-large. There remains, therefore, no way in which the law can hold a healthcare provider to account for the outcomes of

41 SR Perry “Honoré on Responsibility for Outcomes” in P Cane and J Gardner (eds) Relating to Responsibility (Hart Publishing, Oxford, 2001) 61 at 74.

42 T Nagel “Moral Luck” (1976) 50 Proceedings of the Aristotelian Society 137 at 146: “If one cannot be responsible for consequences of one’s actions due to factors beyond one’s control, or for antecedents of one’s acts that are properties of temperament not subject to one’s will, or for the circumstances that pose one’s moral choices, then how can one be responsible even for the stripped-down acts of the will itself, if they are the product of antecedent circumstances outside of the will’s control? ... Everything seems to result from the combined influence of factors, antecedent and posterior to action, that are not within the agent’s control.”

43 J Gardner “Obligations and Outcomes in the Law of Torts” in P Cane and J Gardner (eds) Relating to Responsibility (Hart Publishing, Oxford, 2001) 111 at 128.

44 AM Honoré Responsibility and Fault (Hart Publishing, Oxford, 1999) at 14; Perry “Honoré on Responsibility for Outcomes”, above n 41, at 64.

their actions (where their actions infringe a patient’s rights). Healthcare providers cannot be held outcome accountable.

Healthcare providers can nonetheless be held infringement accountable. The Commissioner, through the statutory complaints procedure, identifies ‘breaches’ of rights by healthcare providers.45 The Commissioner may report the finding of a breach of rights, with reasons and recommendations, to various individuals and institutions (as well as refer the complaint to the Director of Proceedings).46 The complaints procedure therefore satisfies “the desire to find out what happened to that patient and why” as well as the need for an “acknowledgement of responsibility”.47 Moreover, as part of holding healthcare providers infringement accountable, the Commissioner may also recommend that the healthcare provider apologise for their infringement of a patient’s Right(s). In this way, the complaints procedure can loosely resemble the application of the principle of corrective justice.

However, this resemblance should not be overstated. Under the principle of corrective justice, the duty on the duty-bearer to repair the losses that were wrongfully caused by the duty-bearer is premised upon the continuity of reasons that connects (via the notion of outcome accountability) the wrongful action and the consequences of the wrongful action. The Code and complaints procedure are partitioned from the consequences of wrongful action (by virtue of the no-fault compensation scheme for personal injuries) and can therefore only hold an infringing healthcare provider to account for the infringement itself. Since the Code is partitioned from the wrongful losses that require correction, the Code is isolated from the principle of corrective justice.

This distinction, between the duty to repair wrongful losses and a finding of acting wrongfully, is lost in the casual use of ‘accountability’. For instance, Manning suggests that:48

45 See Skegg “A Fortunate Experiment?”, above n 1, at 244-248.

46 Skegg “A Fortunate Experiment?”, above n 1, at 247; Health and Disability Commissioner Act 1994, s 45(2).

47 Manning “Access to Justice for New Zealand Health Consumers”, above n 1, at 394, citing Bismark and Dauer “Motivations for Medico-Legal Action” above n 12; M Bismark and others “Accountability Sought by Patients following Adverse Events from Medical Care” (2006) 175 Canadian Medical Association Journal 889.

48 Manning “New Zealand’s Remedial Response to Adverse Events in Healthcare”, above n 1, at 127.

Corrective justice does not have to be achieved through court proceedings or a damages award, an official finding of fault may be sufficient to satisfy victims’ interest in accountability.

An official finding of fault under the statutory complaints procedure will be sufficient to satisfy a wronged patient’s interest in infringement accountability. It will not, however, satisfy a patient’s interest in outcome accountability (if such an interest arises), and it will not – more to the point – satisfy the requirements of corrective justice. Hence, because of the absence of outcome accountability, the Code and complaints procedures do not represent a system of corrective justice.

4. RIGHTS (IN CONTEXT) vs RIGHTS (IN ISOLATION)

In the previous three sections I have suggested that the Code, the Commissioner, and the statutory complaints procedure, are isolated or partitioned from norms of retributive, distributive and corrective justice. In light of this, it is now possible to return to the question that this chapter set out to answer. The question, that I have attributed to Professor Skegg, asks: in what sense is the Code of Patients’ Rights concerned with rights, when there are few remedial responses to a breach of a right?

To answer this question, we need a basic understanding of what constitutes a ‘right’. Allow me to adopt a general (and ‘neutral’) definition of a ‘right’.49 A ‘right’ grounds (provides the basis for) correlative duties, where the correlative duties represent reasons for action of a special kind. More precisely, the correlative duties represent reasons for action that are categorical in their application and stringency, exclusionary in their normative force, and whose transgression generates a distinctive range of responses.50

Allow me also to briefly unpack this definition. A categorical reason for action is a reason that applies to the duty-bearer regardless of the duty-bearer’s own goals, interests or preferences.51 In other words, it is a reason for action that enters our practical reasoning without question or invitation. An exclusionary reason for action is a (second order) reason that operates to exclude some (first order)

49 J Tasioulas “On the Nature of Human Rights” in G Ernst and J-C Heilinger (eds) The Philosophy of Human Rights: Contemporary Controversies (De Gruyter, Berlin, 2012) 17, at 27: “My conjecture is that much is to be gained by elaborating on at least three important features of moral rights. These are largely neutral as regards divergent philosophical theories, but capture the significance, in ordinary, non-philosophical discourse, of referring to human rights, as opposed to human values, goals, interests etc.” (emphasis in original).
50 At 27-29.
51 J Raz Practical Reason and Norms (Princeton University Press, Princeton, 1990) at 35-80.

competing reasons to the contrary.52 It is a reason that is able to preclude other reasons for action – that may promote actions that would be contrary to the right – from entering our practical reasoning. When a right is infringed, and a duty transgressed, the transgression is properly met with a particular response. The response will vary depending on the right, but such responses may include:53

... blame on the part of onlookers, resentment on part of the victim, self-blame (guilt), reparation and repentance on the part of the rights violator, and in some cases punishment on the part of the relevant political community.

Note that, according to the definition adopted here, there is no particular response to a transgression of a duty that is characteristic of a right. Rather, the remedial response is ‘dynamic’ since there is no closed list of remedial duties that correspond to a right.54

Let us now consider how the rights in the Code measure up against these three criteria for identifying a ‘right’ (above). The Code grounds categorical reasons for action. As clause 1(2) states, without qualification, “Every provider is subject to the duties in this Code.”55 Moreover, the application and stringency of each right in the Code is articulated without qualification. Therefore, in terms of the first criterion of a ‘right’, the Code is a ‘code of rights’.

In terms of the second criterion, the Code grounds exclusionary reasons for action (albeit in an open-textured fashion). Since each right in the Code is stated in simple and near-absolute terms, each right appears to exclude all reasons for action – that are reasons to act contrary to the right – from our practical reasoning. Yet it is difficult to identify what reasons for (contrary) action are actually excluded. This is because sub-clauses 3(1) and 3(3) of the Code state that:56

(1) A provider is not in breach of this Code if the provider has taken reasonable actions in the circumstances to give effect to the rights, and comply with the duties, in this Code.

52 At 35-80.
53 Tasioulas “On the Nature of Human Rights”, above n 49, at 28.
54 J Raz The Morality of Freedom (Oxford University Press, Oxford, 1986) at 171.

55 Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996, Schedule, cl 1(2).

56 Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996, Schedule, cl 3.

(3) For the purposes of this clause, ‘the circumstances’ means all the relevant circumstances, including the [patient’s] clinical circumstances and the provider’s resource constraints.

Interestingly (and tangentially for the purposes of this chapter), the only reasons for (contrary) action that are excluded are the reasons for ‘unreasonable’ action. Although the rights in the Code generate exclusionary reasons for action, and thereby satisfy the second criterion of a ‘right’, the reasons for (contrary) action that are excluded by such ‘rights’ are unhelpfully limited to ‘reasons for unreasonable actions’.

Turning to the third criterion, in considering whether the Code grounds duties, the transgression of which attracts a distinctive range of responses, we arrive at the very crux of Professor Skegg’s reservation. As we know, the infringement of a right can attract a formal investigation, a report, and a series of recommendations that may include the recommendation that the rights-infringer apologise for his, her, or their wrongful actions. These represent a distinctive range of remedial responses, which follow from the infringement of a right and thereby satisfy the third criterion of a ‘right’.

In addition, this remedial response following a breach is no small matter. As Manning explains:57

... the ‘slap over the wrist with a wet bus ticket’ criticism is met in part by the fact that most individual practitioners...are extremely sensitive to official criticism and tend to take a HDC ‘breach’ finding very seriously.

Given that a ‘breach finding’, and any subsequent recommendations, are taken ‘very seriously’ by healthcare providers, and given that a ‘breach finding’ has very limited legal consequences (if any), there is an interesting distinction between the technical status and legal significance of the Code, and the social status and practical significance of the Code. As Skegg observes:58

There is ... a striking contrast between the technical legal status (and, for the most part, legal inconsequence) of a Commissioner opinion and the way in which Commissioner opinions are in fact perceived, both by individual providers and consumers and by the wider public.

57 Manning “New Zealand’s Remedial Response to Adverse Events in Healthcare”, above n 1, at 130.
58 Skegg “A Fortunate Experiment?”, above n 1, at 259.

In addressing the principal inquiry of this chapter, we can find that the Code contains ‘rights’ in a formal or technical sense (and are perhaps perceived as ‘rights’ in a more substantive sense by the healthcare profession too).

More precisely, in terms of Skegg’s concern for ‘legal remedies’, the statutory complaints procedure provides a distinctive range of remedial responses to an infringement of a Right. Ultimately, we can conclude that the Code is a code of rights because of the definition of a ‘right’ that I have posited (perhaps a different definition of ‘rights’ may render a different answer to Skegg’s question). Here, the definition of a ‘right’ includes a remedial response (to the transgression of a duty) as part of the definition, but note that no particular type of remedial response is required to satisfy the definition of a ‘right’ that has been posited here. In applying this definition, the Code is a code of rights since an infringement of the rights in the Code is met by a remedial response, albeit a minimal remedial response.

It is perhaps more important to consider why the remedial response under the Code is so minimal that it raises the question as to whether the Code contains ‘rights’. It is my suggestion that the remedial response to a rights-infringement is minimal because there are no other norms and therefore no other obligations or duties, associated with the Right. This is because, as we have seen, the Code exists in isolation from a wider normative theory. Where a right does exist in the context of a wider normative theory (such as the retributive justice, corrective justice, or distributive justice), the remedial response to an infringement of a right becomes robust. For instance, where a right is infringed in a culpable way, the remedial response is punitive and the rights-infringer will suffer a detriment that is proportionate to their blameworthy conduct. Where a right is infringed, and the wrongfully caused loss is viewed as a normative inequality between the two parties to the interaction, the remedial response is corrective and the rights-infringer is required to repair the wrongfully caused losses. And where benefits and burdens can be allocated between a range of entitlement-holders and burden-bearers, so as to raise a question of distributive justice, substantive rights and duties will be determined, and losses reallocated, in accordance with a norm of just distribution.

In comparison, the Code is isolated from retributive norms (because of the imposition of objective standards), partitioned from distributive norms (because of the separate scheme for compensation), and isolated from corrective norms (because of the statutory bar on compensatory damages). The Code and complaints procedure can only be concerned with infringement accountability. This sole norm – infringement accountability – can only generate a minimal remedial response to an infringement of a right in the form of identifying a breach and, at best, recommending an apology. They are ‘rights’, but they are rights that exist in normative isolation.

5. RIGHTS PROMOTION vs RIGHTS VINDICATION

It is easy to adopt the language of ‘rights’. Especially when (according to the ‘neutral’ definition of a right) designating something as a ‘right’ does not necessitate a particular remedial response for the transgression of a correlative duty. It is because of this ease of rights-speak that s 6 of the Act is able to state that:59

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.

This section, according to Skegg, provides the “lodestar” for the Commissioner,60 and this section also enables Manning to claim that, “ultimately, rights promotion and protection is the Act’s principal purpose”.61

Whilst it is easy to adopt the language of ‘rights’, it is more difficult to explain what a right is for. That is, it is more difficult to identify what value the right is directed towards or the normative context the right occupies. Once we understand what a right is for, we can appreciate what the appropriate remedial response would be for the infringement of the right. As I have explained in this chapter, the Code is not directed towards a retributive or distributive norm. Nor does the Code address questions of corrective justice. Rather, the singular norm that the Code is premised upon is (what has been termed here) infringement accountability.

Even then, infringement accountability appears to be a secondary purpose of the Act (through the conjoiner “to that end”). The primary function of the Commissioner is to promote and protect rights through education and quality assurance; what Bismark and Dauer describe as “correction”. This includes “system change...to protect future patients”62 with the aim to “ensure that a similar incident does not happen in the future”.63 The complaints process provides an opportunity for this ‘correction’. A complaint is the means and the rights promotion and protection is the ends. As Paterson has explained, “complaints offer a ‘window of opportunity’ to improve health services, and a quality-improvement function is ‘a major raison d’être of Commissioners’.”64 The Act is therefore concerned with the promotion

59 Health and Disability Commissioner Act, s 6.
60 Skegg “A Fortunate Experiment?”, above n 1, at 259.
61 Manning “Access to Justice for New Zealand Health Consumers”, above n 1, at 394.
62 Bismark and Dauer “Motivations for Medico-Legal Action”, above n 12, at 55.
63 Manning “Access to Justice for New Zealand Health Consumers”, above n 1, at 394.
64 Paterson “The Patients’ Complaints System in New Zealand”, above n 1, at 75, citing B Wilson

and protection of patients’ rights, by providing “a blue print for customer service”,65 but perhaps falls short of vindicating patient rights by being unable to ‘correct’ (in the principled sense) the rights-infringement itself.

In sum, the rights in the Code generate categorical and exclusionary reasons to act in a particular way, where acting contrary to such reasons is met with a distinctive remedial response in the form of a Commissioner’s investigation. In this sense, the Code is a code of patients’ rights. Yet, these ‘rights’ are unable to engage with a principle of justice: an infringement of an objective standard ought not be met by a retributive response, an infringement of a right does not influence the just distribution of benefits and burdens, nor is an infringement of a right connected to a duty on the rights-infringer to correct the wrongful loss caused by the infringement. Hence, the rights in the Code lack a normative context. The telos of the Health and Disability Commissioner is therefore best understood as ‘improving health services’ rather than holding healthcare providers (outcome) accountable.

“Health Disputes: A ‘Window of Opportunity’ to Improve Health Services” in I Freckelton

and K Petersen (eds) Controversies in Health Law (Federation Press, Sydney, 1999) 179.

65 Health and Disability Commissioner Annual Report of the Health and Disability Commissioner for the Year Ended 30 June 1998 (Health and Disability Commissioner, Auckland, 1998); Paterson “The Patients’ Complaints System in New Zealand”, above n 1, at 75.