Compliance Panel for Implementing and Monitoring the World Health Organization International Code of Marketing of Breast-milk Substitutes in New Zealand: The Code in New Zealand (including Terms of Reference for the Adjudicator for the Appeal Process).
Compliance Panel Name
WHO Compliance Panel for Implementing and Monitoring the International Code of Marketing of Breast-milk Substitutes in New Zealand: The Code in New Zealand (the Code in New Zealand) (CP).
The overall objectives of the CP (which was established by the Ministry of Health (the Ministry)) are to:
- contribute to the wider policy environment which supports the provision of safe and adequate nutrition for New Zealand infants, in order to effectively implement and monitor the WHO International Code in New Zealand
- determine compliance with the Infant Nutrition Council Code of Practice for the Marketing of Infant Formula in New Zealand (INC Code of Practice), and the Code of Practice for Health Workers (Health Workers’ Code) (together the Codes)
- provide comment / advice to the Ministry on issues that arise about implementing and monitoring the WHO International Code in New Zealand.
Role of the CP
The role of the CP is to:
- make decisions on complaints referred to the CP relating to a breach of either of the Codes
- provide advice on appropriate action to remedy a breach of either of the Codes in New Zealand
- provide advice to the Ministry on issues related to implementing the WHO International Code in NZ, including, but not limited to, complaints that are outside the scope of either the Code of Practice for Health Workers or the INC Code of Practice. This may include requesting the Ministry of Health take further educative steps such as writing to individuals / organisations that may be operating in New Zealand in a way that is not consistent with the WHO International Code.
Role of the Adjudicator
The role of the independent Adjudicator has two aspects: determining if what is alleged constitutes a legitimate ground for appeal; and, where required, making a decision about that appeal. The appeal process is detailed in Appendix 1.
Decision making principles
In making a decision on a complaint, the CP is expected to:
- properly apply the Codes, including whether the issue falls within the scope defined in the relevant Code. Complaints are to be considered under the self-regulatory code that applied at the time the alleged breach occurred
- undertake rigorous debate and examination of the issues relating to the complaint
- make a reasoned decision in an open, fair and unbiased manner, based on the principles of natural justice
- when required seek further information before making a final decision (either from the Ministry; the affected parties, health practitioners; INC; or others)
- ensure that all decisions reflect an appropriate balance between protecting the rights and well-being of infants, of consumers, of health practitioners, and INC members
- make all decisions and material relating to the decision available to the Adjudicator for ruling on an appeal, when required.
Duties and responsibilities as a CP member
The expectation of the Director of Public Health is that members operate in an effective manner within the parameters set out in these Terms of Reference (TOR).
- Members will operate in a professional and diligent manner.
- Members will make every effort to attend all meetings, devote sufficient time to become familiar with the affairs of the CP, and undertake adequate preparation prior to the meetings to participate in decision making.
- Members have a duty to act responsibly with regard to the effective and efficient administration of the CP and the use of CP funds.
Terms and conditions of appointment
Members are appointed by the Director of Public Health for a term of office of three years, up to a maximum of two terms. The Director of Public Health also appoints the Chair of the CP for a term of office of three years, up to a maximum of two terms. At the end of the maximum terms, members’ appointments (including the Chair) may be extended for a period of up to eighteen months, to allow for continuity of the CP while new appointments are made. The industry member is nominated by the INC, and appointed by the Director of Public Health.
Any member may at any time resign by advising the Director of Public Health in writing.
Any member may at any time be removed from office by the Director of Public Health (at his or her sole discretion) on grounds of inappropriate behaviour, or incapacity to discharge the functions of his or her office.
The Director of Public Health may from time to time alter or reconstitute the CP, or appoint new members for the purpose of increasing the membership or filling any vacancies.
Composition of the CP
The CP has four members and an independent Chair. The CP consists of:
- one community/consumer representative
- the industry representative
- one health practitioner
- one academic in a field related to infant and maternal nutrition.
The composition of the CP ensures that the range of skills and expertise includes:
- an understanding of self-regulatory processes
- a working knowledge of meeting procedure and an understanding of due process
- knowledge of current scientific literature and the current evidence base relating to infant nutrition
- awareness of the WHO International Code of Marketing of Breast-milk Substitutes (1981)
- knowledge of and commitment to The Code in New Zealand
- an ability to engage with colleagues for shared decision making
- an ability to exercise analytical and judgement skills, specifically when to seek external cultural or technical expertise
- knowledge of infant feeding practices
- awareness of He Korowai Oranga and Whānau Ora
- awareness of a range of cultural contexts especially for Māori and Pacific peoples
- demonstrated links to ethnic minorities and/or to the disability sector
- demonstrated links to the community (including caregivers of infants)
- effective communication skills.
The independent Chair is appointed by the Director of Public Health, based on the Chair’s ability to carry out the role effectively and fairly. An understanding of regulatory and self-regulatory systems is advantageous.
The independent Chair will work closely with the CP Secretariat (Secretariat) provided by the Ministry to:
- discuss the agenda with the Secretariat prior to meetings, and ensure appropriate input from the CP, where required
- ensure sufficient time is allocated in meetings for each agenda item to be adequately addressed
- ensure fairness in discussion amongst panel members
- ensure that key discussions/decisions are summarised
- ensure all decisions are clearly considered and actions are assigned in an agreed timeframe.
Conflicts of interest
- Members must perform their functions in good faith, honestly and impartially and avoid situations that might compromise their integrity or otherwise lead to conflicts of interest. The CP is to perform its functions with a view to ensuring that it has the confidence of stakeholder groups.
- Members attend meetings and undertake CP activities as independent persons with areas of expertise relevant to work as the CP, and are responsible to the CP as a whole. Members are not appointed as representatives of professional organisations and groups. The CP should not, therefore, assume that a particular group's interests have been taken into account.
- When members believe they have a conflict of interest on a complaint, they must declare that conflict of interest and the Chair (with support from the Ministry) will decide the extent to which that person can contribute to the discussion and/or activity around consideration of that complaint. A register of conflict of interest will be held at all times for CP members.
Confidentiality and information sharing
- The public has a right to be informed about the final decisions of the CP. The CP must follow its procedures regarding the release of final decisions and processing requests for information.
- Members must observe the following duties in relation to CP information. These provisions ensure that the CP as a whole maintains control over the appropriate release of information.
- Meetings, including agenda material, notes and minutes, are confidential to the CP members and the Ministry.
- Members must ensure that the confidentiality of the CP is maintained and that CP documents are kept secure.
- Members are free to express their own views within the context of the CP meetings.
- Members must not publicly comment on decisions made by the CP.
- The Director of Public Health requires advance notice of any media statements or adjuncts to reports to be published.
- At no time should members individually divulge details of the CP or decisions of the CP to persons who are not part of the CP or the Ministry.
- The provisions of the Official Information Act 1982 and the Privacy Act 2020 apply to information held by the CP, and CP information can only be released with the approval of the CP Chair on behalf of the CP, in consultation with the Ministry.
The CP will be performing effectively when it provides relevant and timely decisions on unresolved complaints to the complainant and to the respondent and stays within its allocated budget.
The suggested process and timeline for assessing complaints is:
- The complaint is received by the Ministry, and:
- The CP Secretariat classifies whether the complaint is within scope of the Code of Practice for Health Workers or the INC Code of Practice as soon as is practicable.
- Complaints that are not straightforward to classify are circulated to the CP out of session, and the CP has 10 working days to determine whether the complaint is within scope.
- If the complaint is within scope, the Ministry invites the subject of the complaint (the Respondent) to respond as soon as is practicable. The Respondent has 20 working days from receipt of the complaint, to respond.
- If the complaint is not within scope, the Ministry advises the complainant in writing.
- On receipt of the response, the Ministry forwards the response to the complainant as soon as is practicable.
- The complainant has 20 working days from receipt of the response to advise the Ministry if they are not satisfied with the response and if they want the CP to consider their complaint. If the complainant is satisfied or does not want to pursue the complaint further, the Ministry may, at their discretion, refer the complaint to the CP for its information, but not for determination. The CP may wish to provide the Ministry with advice or comment.
- If the complainant is not satisfied with the Respondent’s response and wants the CP to consider the complaint, the Ministry advises affected parties that the complaint will be considered at the next scheduled CP meeting.
- The CP at its next meeting considers the complaint and either determines whether there has been a breach of either code, or seeks further information from either party as required. Seeking further information may include (but is not limited to) seeking a further response from the Respondent, where the CP identify an Article / Articles may have been breached that were not included in the original complaint.
- For first time complaints against a health worker or his/her organisation, if the alleged breach is considered deliberate by the CP, the CP will consider the complaint and make a determination. If the CP considers the alleged breach was not deliberate, the CP will recommend appropriate educative action, but will not determine the complaint.
- Once the complaint has been determined, the CP has 30 working days to finalise drafting of the decision. Written notification will be sent to all affected parties of the CP decision.
- All affected parties have 20 working days, from receipt of the CP written decision, to lodge an appeal with the Ministry, as set out in Appendix 1.
If no appeals are lodged after 20 working days from receipt of CP decision, the CP Secretariat will initiate any action recommended by the CP, and close off the complaint.
Meetings of the Committee
Meetings shall be held at such times and places (including teleconferences) as agreed by the Chair, the majority of panel members and the Secretariat.
The CP will agree on a quarterly meeting programme for the coming calendar year by no later than September of the preceding year. This is to ensure that unresolved complaints are considered within three months of lodgement with the Ministry.
At any meeting, a quorum shall consist of three members, including the Chair or the Chair’s assigned deputy for that meeting.
Every complaint under consideration shall be determined by majority vote. Each panel member present (including the Chair) has one vote. Panel members who are neither present nor participating by teleconference, are not entitled to vote.
The CP must not publish any decision, until the appeal period has expired with no appeal lodged, or (where an appeal is lodged) the Adjudicator’s decision has been made.
Correspondence arising from CP business will be drafted by the CP Secretariat and reviewed by the CP Chair, on behalf of the CP. If changes are required these will then be made by the CP Secretariat before the correspondence is sent to the recipient. All CP correspondence will be signed by the Secretariat for WHO Compliance Panel.
Subject to the provisions set out in these terms of reference, the CP may determine its own administrative procedures.
Records and Reporting Requirements
The CP is required to keep minutes of all CP meetings including a clear record of any decisions or recommendations made about any complaint (Secretariat to prepare minutes).
An annual report for the CP will be prepared by the Secretariat. This will briefly summarise complaints and queries received in that calendar year. Once the CP has confirmed the annual report, a summary of the report will be posted on the Ministry’s website.
Fees and Allowances
Members are entitled to be paid fees for attendance at meetings. Attendance fees are set in accordance with the State Services Commission's framework for fees for statutory bodies.
The Chair will receive $430 per day. There is provision for an additional half-day payment ($215 per half day) for additional preparation and reading time, as determined by the Ministry. In addition, an additional allowance of an extra day per quarter for any other work undertaken by the Chair (if required), is available.
The attendance fee for members is set at $320 per day. There is provision for an additional half day payment ($160 per day) for additional preparation and reading time, as determined by the Ministry.
The industry representative will be funded by the INC.
The Ministry will pay for actual and reasonable travel and if required accommodation (within New Zealand) for any expenses of members accrued on CP business, on receipt of supporting invoices, with the exception of the INC Executive Director.
The Adjudicator will be paid at a rate to be determined by the Ministry on a case-by-case basis. The Ministry anticipates that this remuneration is likely to be within the range of $320 to $430 per appeal.
Further information about the fees framework can be accessed from the Cabinet Office website.
‘Working day’ means any day except a Saturday, a Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s birthday, and Waitangi Day; and a day in the period beginning on 20 December in any year and ending with 10 January in the following year.
Adjudicator for WHO CP Appeal Process
Appeal process for Implementing and Monitoring the International Code of Marketing of Breast-milk Substitutes in New Zealand: The Code in New Zealand (the Code in New Zealand).
The role of the Adjudicator has two parts: determining if what is alleged constitutes a legitimate ground for appeal; and (where required) determining (making a decision about) that appeal.
Any affected party can bring an appeal. Grounds for the Adjudicator accepting an appeal is where it appears that the CP, in making its decision:
- did not follow a fair process based on the principles of natural justice
- failed to take a relevant fact into consideration or took an irrelevant fact into account, or gave a relevant fact insufficient weight or
- did not properly apply the relevant Codes in its decision.
If there are grounds for an appeal, the Adjudicator may uphold, amend, or quash the CP decision. The Adjudicator may also refer the complaint back to the CP for re-determination.
Process for decision making
- The Adjudicator will receive all material relating to the CP decision that has been appealed.
- The Adjudicator will undertake a rigorous examination of the material put before him/her in an open, fair and unbiased manner, based on the principles of natural justice.
- The Adjudicator will determine whether one (or more) of the three grounds of appeal (set out in the preceding section) are established.
- If the Adjudicator determines that there are established grounds for the appeal, he or she will consider the evidence (as presented to, and considered by, the CP) and decide whether the CP decision should be upheld, amended, quashed, or referred back to the CP for re-determination.
- After receipt of the appeal, the Adjudicator has 30 working days to consider the grounds for the appeal, make a decision, and provide written reasons for his or her decision.
Any appeal is limited to the three grounds set out above. The Adjudicator does not consider new evidence, only the material that was considered by the CP. Should new information be provided to the Adjudicator by either party, the new information must be declined.
Appeal process timeline
- The CP Secretariat sends written notification to the complainant and affected parties of the CP decision as soon as practicable.
- All affected parties have 20 working days from receipt of the CP written decision to lodge an appeal.
- If no appeal is lodged after 20 working days from receipt of CP decision, the CP Secretariat will initiate any action recommended by the CP.
- If an appeal has been lodged, no action (if required) will be taken apart from advising affected parties of the appeal, until the Adjudicator has considered the appeal.
- After receipt of the appeal, the Adjudicator has 30 working days to consider the grounds for the appeal, make a decision, and provide written reasons for the decision.
- The CP Secretariat has 20 working days from receipt of the Adjudicator’s written decision to inform affected parties and initiate any action recommended by the Adjudicator.
- The Adjudicator’s decision is final, including a decision to refer the complaint back to the Compliance Panel for redetermination, so no further appeal can be lodged with the Ministry of Health by any party.