What Took You So Long? Exploring Delays by the Health and Disability Commissioner And Delay as a Basis for Judicial Review

Abstract

There are many reasons why administrative decision-making may take longer than affected individuals might like. The lack of adequate resources or an unexpected increase in workload may contribute to the length of time taken to reach a decision. Likewise, the complexity of the matter under consideration, or the practices adopted by a decision-maker, may influence timeliness. That said, it must be the case that decision-makers have some responsibility (statutory or otherwise) to act in a timely manner. Indeed, it is arguable that those exercising a power of decision ought to be “answerable to, and should be responsive to, those affected by that exercise of power.”¹

What, then, can be done by those who are left waiting? One option for affected individuals is to turn to the courts which, in their supervisory capacity, play an important role in holding statutory decision-makers to account. Delay with administrative processes has previously attracted the courts scrutiny, but there are limitations to the exercise of the courts discretion. In particular, there appears to be reluctance to intervene in the absence of inordinate delay coupled with specific prejudice flowing directly from the delay. And, in some cases the court may be concerned (or persuaded) that its intervention in an incomplete process is premature. To explore these matters further, this paper considers the courts preparedness to inquire into delay by using the investigative processes of the Health and Disability Commissioner (the Commissioner) to evaluate and (where appropriate) test the current law.

The Commissioner, who has a statutory discretion to investigate health professionals for alleged breaches of patient rights, operates under a statutory framework which has as its principal purpose the “fair, simple, speedy, and efficient” resolution of patient complaints.² Notwithstanding this, anecdotal evidence suggests that – at worst – some investigations may take up to two years to complete. Among other things, it is argued that the Commissioner’s statutory purpose is a clear direction to act in a timely manner, and that his or her failure to do so is deserving of the courts scrutiny and intervention irrespective of any prejudice to the health professional under investigation. It is also suggested that although detriment arising from delay may be a helpful marker as to the seriousness of the departure from expected standards of procedural fairness, any assessment of harm resulting from the delay should be preserved for consideration of an appropriate remedy.

¹ Justice Alan Robertson “Natural Justice or Procedural Fairness” (4 September 2015) Federal Court of Australia.<www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-robertson/robertson-j-20150904> (accessed 3 September 2017).

² Health and Disability Commissioner Act 1994, s 6.