A man whose mother was neglected in a Cambridge resthome is accusing the Health and Disability Commissioner of bias and wants the Health Minister to urgently intervene.
Robert Love's mother Freda Love, died in Waikato Hospital after living in Bupa's St Kilda resthome for six months.
On one occasion he found her shivering in a urine-soaked bed with just a thin shawl for covering, the window wide-open and the call bell out of reach.
She had been there for hours.
It was just one of many examples Mr Love gave the Waikato DHB, the Health and Disability Commissioner (HDC) and the Disputes Tribunal when he complained about his mother's treatment.
Shortly after his mother's death in February 2017, the DHB told Mr Love they were satisfied Bupa had apologised and would take appropriate corrective action.
That action was in stark contrast to a Disputes Tribunal hearing, which ruled later that year there has been a systemic failure to provide a reasonable level of care.
In a 2018 audit of the resthome Waikato DHB found problems similar to what Mr Love had complained about with his mother, but a subsequent independent investigation concluded there were no concerns needing attention.
Mr Love has complained to the Health and Disability Commissioner about his mother's treatment and the actions of Waikato DHB.
The Health and Disability Commissioner has asked Mr Love to provide comments on the provisional opinion.
Mr Love said the process was biased toward the rest home giant.
"I get a redacted version which only has the evidence... Bupa get the whole report so that they get to see the evidence and also how the Commissioner is interpreting that evidence.
"They therefore enjoy an obvious advantage in shaping the decision, in any comments that they make, whereas I just get to see a very narrow version of the evidence."
Mr Love's request for the full report was declined after he requested it under the Official Information Act. Bupa was also advised that he wanted a copy, and its lawyers wrote a submission, which Mr Love could not see.
"This doesn't seem like a very balanced and natural justice response from HDC who are there in the first instance to support and champion the interests of the consumer, they appear to be championing the interests of Bupa."
He said the information that was available was erroneous in parts and other information was omitted.
"For example independent witness statements, from the Commissioner's own advocacy service, which directly contradicts Bupa's accounts which are listed as evidence, is simply omitted, it just doesn't appear, and that's startlingly surprising."
The Commissioner Anthony Hill said, even with a privacy waiver, he could not comment on individual cases, but was confident there was no bias in the way the complaint was being handled.
"HDC is impartial and independent. We hear all sides of the story, consider carefully and make a decision. People will not always be happy with our decisions."
"Mr Love has raised a number of issues over time. We have taken Queen's Counsel advice on this matter. HDC is confident that its processes are fair and robust and have been followed in this case."
He said it was not unusual for parties to receive different information at this point of an investigation.
"HDC follows principles of natural justice. In accordance with the Health and Disability Commissioner Act 1994 those parties against whom an adverse finding or comment might be made are given the draft investigation opinion with the opportunity to respond to the provisional findings or comments.
"The person making the complaint is given the information gathered part of the report so they can if they wish comment on the accuracy of the information."
However, Mr Love's confidence in the process remained shaken, particularly after a previous expert advisor with connections to Bupa, worked on his case.
"She had a shared directorship in a company which advocates for the [aged care] industry along with the managing director of Bupa. So she sat on the board of directors with the managing director of Bupa NZ."
"She was the director of another company that provides training to Bupa."
The HDC said in a statement when it became aware of a potential conflict, it investigated.
"We reviewed the cases where she had provided independent advice. We found no evidence that indicated a lack of balance or bias in the advice provided."
Mr Love said the process had been a "sham".
"Any impartial review of this would conclude that HDC reached a decision on this some time ago and they're intent on discarding as much of the evidence against Bupa as possible and then cherry-picking the least damaging of what remains."
He has penned an open letter to the Health Minister David Clark, asking for help.
Ministry won't intervene
A spokesperson for the Minister said he could not get involved.
"The HDC investigates complaints about health care services independently of health care providers, the Ministry of Health and the Minister.
"For this reason it is not appropriate for the Minister of Health to comment on or intervene in the decisions or processes of the organisation.
"Where a person is dissatisfied with an act, decision or omission of the Commissioner, they have the right of complaint to the Ombudsman under the Ombudsmen Act 1975."
Mr Love said it was only a matter of time before the aged care sector in New Zealand, faced the same level of scrutiny and accountability as the Australia, where there is currently a Royal Commission underway.