Surgical mesh victim launches petition for right to appeal complaint decisions

Surgical mesh victim Renate Schutte has launched a petition urging change to the Health and Disability Commissioner Act to allow for the appeal of complaint decisions. Photo / Supplied

A woman who suffered debilitating chronic pain after having surgical mesh implanted is calling for the right to appeal against complaint decisions, after her case was essentially dismissed by the country's only patient watchdog.

Renate Schutte suffered severe pain and autoimmune disorders after she had surgical mesh inserted to correct stress urinary incontinence, a common complication of childbirth.

But when she complained to the Health and Disability Commissioner that she was not properly informed about removal of the mesh, the surgeon was reminded about better record keeping, the HDC made "educational comment" and the file was closed.

However Schutte, an environmental scientist from Auckland, claims she specifically asked the doctor before her 2012 surgery whether the transvaginal tape could be removed in case of any problems and was told yes.

The mesh, the subject of a class action lawsuit in Australia against makers Johnson and Johnson won by 1350 women late last year, is very complex to remove and Schutte had hers taken out in the United States in 2017.

But in many cases where it has caused severe disability the tape, also used in prolapsed bowel and hernia repair surgeries, has eroded into tissue, resulting in serious injuries.

In New Zealand a Medsafe report from 2018 found more than 1000 people had reported issues with surgical mesh.

Support group Surgical Mesh Down Under have called for a government inquiry into the situation.

The Auckland Women's Health Council reported ACC had received more than 1018 treatment injury claims between 2005 and June 2018, of which 771 claims were accepted.

Yet, according to the surgical mesh restorative justice process last year, only 45 complaints had been made to the Health and Disability Commissioner [HDC], and only three complaints - related to hernia repair - upheld.

Commissioner Anthony Hill has been questioned before about complainant rights to appeal HDC decisions but did not consider the issue during his recent review of the Act and Code. Photo / File

Schutte said there was distrust of the HDC, the country's only organisation where patients can take complaints, among surgical mesh victims.

"There's 1000 people on the Facebook support group and there's not many that have actually gone through the process of lodging a complaint with the HDC even though some of those injuries are absolutely harrowing."

She said some of the victims had been "fobbed off by surgeons", told the pain was all in their head and there were issues around informed consent, right seven under The Code of patient rights.

Schutte said with so few complaints being investigated it has put other sufferers off seeking justice.

Her views are backed up by a 2018 thesis by then Auckland University law student Jade du Preez which found people with mesh injuries were frustrated in their attempts to complain to the HDC.

Schutte has launched a petition to Parliament asking that the MPs amend the Health and Disability Commissioner Act 1994 to give complainants and medical professionals or providers a right of appeal.

The Herald put questions to Health and Disability Commissioner Anthony Hill and Minister of Health David Clark on Friday but neither responded.

When previously asked about the right to appeal, Hill told the Herald complainants could do so through the Ombudsman or at judicial review.

However, a High Court appeal can be an expensive legal process while the Ombudsman can only focus on procedural fairness and not the outcome of a decision.

"New Zealand has a no-fault compensation system that is the envy of much of the world," Hill said in August last year.

"If you are asking about a more litigious system, with all that entails, that is a significant change to New Zealand's current ACC environment and something that needs a much wider public conversation and legislative change."

Health Minister David Clark has always maintained he cannot intervene in Health and Disability Commissioner complaints and refers those who want to appeal to the Ombudsman. Photo / Mark Mitchell

The commissioner has a discretion to revisit a preliminary assessment of a complaint.

For example, if the HDC decided to take no further action that decision can be reversed and the case forwarded for investigation, but this rarely happens.

A review of the HDC Act and Code was recently undertaken by the commissioner, a five-yearly requirement that in the past was publicly consulted.

The minister acknowledged receipt of the review, dated December 19, 2019, on May 12.

Auckland University Professor Jo Manning said the right to appeal could have been considered during this process.

"Had the commissioner publicly consulted on the Act and Code, as he is required by the statute to do, a submission seeking amendment to the HDC Act 1994 could have been made and considered by the commissioner, and reported on to the minister."

So far Schutte's petition has 112 signatures. She hopes it will reach into the thousands and go before Select Committee for consideration.

"I feel a right of appeal will give assurance that decisions are fair and transparent, and greater vigilance of the HDC will help improve medical performance and ensure patient safety in the long term," Schutte said.