The new District Health Boards ("DHBs") will be obliged to "consult" when making decisions. What does this obligation involve?

Statutory Obligations

The New Zealand Public Health and Disability Act 2000 ("the Act") says DHBs have to consult in two situations:

1. Development Of District Strategic Plan
The Act requires DHBs to work out strategic plans for the 5 to 10 years ahead and to review those plans every 3 years. The process for doing so involves:

- assessing the district's health status, needs, and desired outcomes;
- preparing a draft plan;
- consulting with the resident population on that draft; and
- obtaining the Minister of Health's consent to the plan.

DHBs have to consult as if they were local authorities and must follow the special consultative procedure set out in the Local Government Act 1974.

2. Proposed Changes To District Annual Plan
DHBs also have to agree on an annual plan each year. This plan must outline the intended outputs, how they relate to the strategic plan, and how they will be funded. It must also include financial information and forecasts.

Where an annual plan proposes significant change to policies, outputs, or funding, the DHB must consult its resident population about the proposed change.

Other Obligations To Consult

As Crown Entities, DHBs may also have to consult in other circumstances. This arises where they are making decisions under the authority of a statutory power and they create a legitimate expectation that they will consult affected parties.

Examples of such situations are:

- where a DHB commits itself to a process for determining prices for health and disability services and that process includes an obligation to consult;
- where a DHB develops a practice of consulting on certain types of decisions, that practice may create an obligation to consult on similar matters in future.

An administrator has a general duty to act fairly. Within that, the doctrine of legitimate expectation means that the administrator should follow a particular procedure if there has already been a specific promise to do so or practice of doing so.

What Does Consultation Mean?

What is meant by consultation has been considered carefully by the New Zealand courts. The Court of Appeal has defined it as giving people relevant information about a proposal and listening to what they have to say about it. It has also commented that the decision-maker should bring an open mind to the process and should not make a decision without considering what people have said.

This definition of consultation does not require negotiations towards an agreement. The Court has noted, however, that consensus is often sought as part of consultation.

Consensus does not mean agreement, but a respectable degree of uniformity of belief and evaluation. It may mean "...sympathy, empathy, and comprehending fellowship?" (Reschler, Pluralism: Against the Demand for Consensus (1992)).

The special consultative procedure set out in the Local Government Act 1974 requires public notice to be given and an opportunity allowed for submissions. Anyone making a submission must be given the opportunity to be heard and all submissions must be made available to the public.

Summary

In the restructured health sector it will be crucial for DHBs to be aware of their obligations to consult and to ensure that they do so.

Copyright The Lawlink Group Ltd 2001

Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.

Web site:
Harkness Henry

Email: harkness@harkness.co.nz

May 2001