International Code of Marketing of Breast-milk Substitutes in New Zealand

Compliance Panel for the Code in New Zealand

Terms of Reference 2008

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Compliance Panel for Implementing and Monitoring the 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).

Objective
The overall objective of the CP, which was established by the Ministry of Health, is to contribute to the wider policy environment which supports the provision of safe and adequate nutrition for New Zealand infants. The CP is part of the complaints process for implementing and monitoring the Code in New Zealand.

Role of the CP
The role of the CP is to:

make decisions on unresolved complaints relating to either the Code of Practice for Health Workers (Ministry of Health 2007) or the Infant Nutrtion Council (INC) Code of Practice for the Marketing of Infant Formula (2007) (the codes)
provide advice on appropriate action to remedy a breach of either code in New Zealand.

Role of the Adjudicator
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. The appeal process is detailed in Appendix 1.

Decision making principles
In making its decisions, the CP is expected to:

properly apply the codes in consideration of complaints
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 of Health (the Ministry); health practitioners; INC; or others)
ensure that all decisions reflect an appropriate balance between protecting the rights and well-being 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).

General guidance

Members have a commitment to work for the greater good of the CP.
Members will make every effort to attend all meetings and devote sufficient time to become familiar with the affairs of the CP.
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 have been appointed by the Director of Public Health for a term of office of at least three years.

The industry member is the Executive Director of the INC.

Any member may at any time resign by advising the Director of Public Health in writing. However, the resigning member should complete any complaints process where he or she is involved.

Any member may at any time be removed from office by the Director of Public Health (in his or her sole discretion) on grounds of misbehaviour, 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 INC Executive Director
one health practitioner
one academic in a field related to infant and maternal nutrition.

The composition of the CP has been determined to ensure 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 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 including breastfeeding
awareness of He Korowai Oranga and Whanau Ora
awareness of different 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.

Chairperson
The independent Chair will work closely with the Secretariat (provided by the Ministry) to:

ensure the agenda is prepared in time with 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 responsible to the CP as a whole. Members are not appointed as representatives of professional organisations and groups, with the exception of the INC Executive Director. The CP should not, therefore, assume that a particular group's interests have been taken into account, with the exception of the INC Executive Director, because a member is professionally associated with that particular group.
When members believe they have a conflict of interest on a complaint, they must declare that conflict of interest and the Chair will decide what that person can contribute to the discussion and/or activity around consideration of that complaint.

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
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
The provisions of the Official Information Act 1982 and the Privacy Act 1993 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.

Performance Measures
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.

Complaint timeline
The suggested timeline for processing complaints is:

The complaint is received by the Ministry.
The Ministry has 20 working days from receipt of the complaint to invite the respondent to respond to the complaint.
The respondent has 20 working days from receipt of the complaint, to respond.
On receipt of the response, the Ministry has 20 working days to on-forward this to the complainant.
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 not satisfied with the respondent’s response and wants the CP to consider their complaint, the Ministry advises affected parties of that fact, and that the complaint will be considered at the next scheduled CP meeting.
The CP at its next meeting considers the complaint and either makes a decision, or seeks further information.
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 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.

Meetings of the Committee
Meetings shall be held at such times and places (including teleconferences) as agreed by the CP 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.

At any meeting, a quorum shall consist of three members, including the CP 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 CP Chair) has one vote. Panel members not present or 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: Analyst XXXX, Secretariat for WHO Compliance Panel. Nutrition and Physical Activity Policy Team.

Subject to the provisions set out in these TOR, the CP may determine its own 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.

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 INC Executive Director will be funded by the INC.

The Ministry will pay for actual and reasonable travel and 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 at:
http://www.dpmc.govt.nz/cabinet/circulars/co06/8.html

Definitions
“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.

Appendix 1

TERMS OF REFERENCE 2008

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).

Role
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.

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 appeals are 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.