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Commissioner's "Report Card" for Private Hospitals

1. Introduction

When I addressed the NZHA Conference in Auckland last year, I spoke about the Commissioner's complaints and investigation processes, and presented a number of examples of situations where I had found Private Hospitals either not in breach, or in breach, of the Code of Health and Disability Services Consumers' Rights. This year I have been asked to present a "Report Card" for Private Hospitals.

Over the past 10 years we have seen a shift from health as a vocation to health as a business. This has provided the opportunity to present the Code to provider groups such as New Zealand Hospitals as a quality improvement tool - a blueprint for customer service - and encourage them to incorporate its principles into training programmes and codes of practice. In New Zealand, I believe we are extremely fortunate to have the Code of Rights - a regulation that protects consumer rights within the health and disability sector.

I acknowledge that since the Code came into effect, it has taken time for providers to accept they must be aware of a range of issues when dealing with consumers, not just the ones that may have led to disciplinary hearings in the past. For example, in the pre-Code era, if a health professional came under scrutiny from a regulatory body the focus would be on whether or not the service met appropriate standards. However this is only one of 10 equally important aspects of service delivery now demanded by the Code.

Complaints such as "the doctor was rude to me" are equally valid in terms of the Code and must be taken seriously both by the professions and the Commissioner. Rudeness and arrogance are detrimental to health outcomes, as consumers tend to stop listening and participating in that service delivery. It is important that all providers be reminded that the Code establishes standards in its own right and the Commissioner's opinion (the result of a thorough and impartial investigation process) stands, regardless of the outcome of any subsequent disciplinary action.

2. Public vs Private - The Differences

In formulating a 'report card' I had to acknowledge the very real differences that exist between the public and private hospital sector:

• in the public services all providers are employees of the service and there are no fees.
  
  
• in the private sector consumers usually pay for services and therefore have quite different expectations to public service consumers.
  
  
• in the private sector relationships between consumer and provider are different to the public sector. In public consumers see the overall responsibility by the hospital. Private consumers however are confused by separate payment and accountability of hospital/consultant/anaesthetist etc.
  
  
• private consumers are often better informed and usually more assertive about their rights and expected entitlement to a quality service.

In light of the above comments, perhaps it is not surprising that as Commissioner I receive less complaints about private hospitals than public, however the fact remains that I still do receive and investigate complaints in this area, a fact that is reflected in the comments that follow.

3. Report Card

 

I am pleased to report that, in terms of the actual number of complaints received and the nature of those complaints, the 'report card' for this year is positive. In reporting on private hospitals however, I am aware that it is difficult to draw comparisons between complaints and investigations in the public and private sectors for the following reasons:

• numbers of 'private' service encounters are much reduced on 'public', and it is difficult to compare the two without such statistical data.
  
  
• the private service tends to often be less complex. For example the private sector does not involve itself with high-risk accident and emergency or mental health consumers.
  
  
• the private sector usually has more empowered consumers as they can afford to hold medical insurance or have private means.
  
  
• consumers are generally admitted to private hospitals with specific problems that tend to have a defined treatment regime and likely outcome. In the public sector there is a much greater margin for 'unknown' outcomes.

In 'reporting' on what I see as some of the key Code issues currently affecting Private Hospitals, I refer to statistics from the Commissioner's 1999 Annual Report. During the 1998-99 financial year my office received 1,174 new complaints. A single complaint may involve multiple consumers or providers and, in fact, complaints during this period represented investigations in respect of 1,331 providers. Some of these providers were a party who had potential vicarious liability as an employing authority.

This year's complaints included 12 private hospitals and 10 rest homes. Of the 1,162 complaint files closed in the last financial year, 144 resulted in a breach of the Code. The highest number of breaches for all provider types were; pharmaceutical (22), general practice (30), general medical (10), rest homes (10) and dental (10). While no breach was found in respect of a private hospital, I am aware that some of the individual providers were either found in breach or resolution was reached through advocacy, mediation or between the parties involved with care delivered in a private hospital. As at 1 July 1999 there were 790 open complaint files in the office, a figure that includes 33 files currently with the Director of Proceedings.

Experience continues to suggest that most complaints related to areas of effective communication and standards of care. In some cases staff lacked the knowledge to provide even basic daily care, for example, in respect of incontinence management, showering procedures or basic hygiene protocols. I again stress the continued importance of effective communication between providers and consumers; between providers and consumers' families; or between staff members and management. As I commented to this Conference last year, the first two weeks after a family admit a relative to a hospital for long term care appear the most important in terms of communication, and is the time in which most usually complain. Additionally the initial responses to a complaint are critical in terms of providers' ability to ensure resolution. Are you open and honest in your communications? Has the right person been asked to see or correspond with the complainant? etc.

Because the health sector is one staffed by people who provide care for people, there will always be examples of human fallibility. What we should expect is that individuals involved in the provision of health care are professionally trained, provided with ongoing education and support, and have their performance monitored so as to maintain the highest standard of health care delivery. The Code recognises that services should be provided in a manner that allows the consumer to exercise as much independence as possible in the circumstances. It also imposes a presumption of competence through Right 7, consistent with that in other legislation such as the Protection of Personal and Property Rights Act. Effective communication is a critical component in getting the balance right.

Issues

1. Consumer Needs

The needs of individuals must be taken into account. Therefore policies and procedures must have flexibility that allows individual requirements and preferences to be acknowledged. The most effective policies are those that assist consumers and their families to be more involved in the decisions and planning of care. The following example, from an investigation into the provision of services in a private hospital, provides a useful illustration of these issues, and how the Code should apply to practice:

I received a complaint from a daughter that her mother had received unsatisfactory treatment at a private hospital. The daughter complained that -

• staff did not listen to what the family had to say regarding her mother's care;
  
  
• her mother was left dirty and cold and was dressed in someone else's clothes;
  
  
• the family was not informed of the reason for physiotherapy treatment;
  
  
• while her mother was on oxygen she noticed the cylinder was empty and had
  
  
• to ask a nurse to replace it. When the nurse returned her mother had died.

My opinion was as follows:

Standards: There was insufficient evidence that the hospital failed to provide services of an appropriate standard to the consumer.

Communication and Information: While recognising the difficulties that often occur in deciding on issues of competence and levels of understanding, in this case the family were suitable people to advise about the consumer's care and requirements. While there was uncertainty about the consumer's competence and level of understanding, the family should have been kept adequately informed.

2. Professional Standards

Recent events at one private hospital again raise questions about how a practitioner's performance is monitored/peer reviewed in order to ensure it meets established standards. I know many of you are aware of the importance of professional monitoring/ credentialling, and have policies in place to ensure this occurs, however it remains an issue which demands ongoing vigilance by both hospitals, colleges and professional bodies.

3. Co-ordinated Care and Record-Keeping

Time and time again I hear complaints about poor communication between doctors, or between doctors and other providers. The effect of this on consumers cannot be understated and sometimes has tragic results. The obligation on providers to co-operate to ensure quality and continuity of care now plays an important part in ensuring the delivery of quality services to consumers. One of the most important ways of ensuring this is through the keeping of good patient records. Inadequate record keeping continues to present as a significant component in many of my investigations. The failure to keep adequate records was also highlighted by Dr Peter Robinson (MPS) at our Conference earlier this year.

In a recent case a surgeon saw his patient six times following an operation. Initially the patient was concerned at the state of her wound. She may or may not have had an infection, and/or complications. We don't know whether her concerns were justified - his records simply say "Checked". She says she complained of leg pain, potentially a symptom of possibly serious complications. He may or may not have examined her. Again we don't know because he recorded nothing other than the fact of her visit. At one visit he prescribed antibiotics, later admitting at an MPDT hearing that he did not really consider them necessary. He made no record of the prescription.

Eventually the patient was admitted to a public hospital where for the first time since her operation, someone (on a public holiday) recorded a full and accurate record of her examination and condition. This was a case later heard by the Medical Practitioners Disciplinary Tribunal, which received evidence from another surgeon that the defendant's notes were not unusual and were adequate for the circumstances. I was surprised and disappointed by the Tribunal's decision, which found that the note taking by this doctor did not warrant disciplinary censure because it was "not out of keeping with the norm, particularly in the context of a busy private specialist practice?

I was able to categorically assure the concerned consumer that, based on the hundreds of cases I have reviewed as Commissioner, I considered these notes were far below the "norm". In fact I would describe them as some of the worst and most minuscule medical records that I have ever seen.

I believe the issues raised are important for private hospitals. Practitioners may wish to argue that keeping notes to a minimum will minimise the chance that they may be used against them at some future date. I would argue that the failure to keep accurate, full, legible and signed notes is at the very least an indication of a lack of professional accountability, and at the worst a dereliction of professional duty. It is an essential element in ensuring continuous quality care. While the MPDT were assured of the practitioner being available to give information to the public hospital on the day, I am unconvinced. I remain disappointed that the medical practitioner's own disciplinary body did not seize this opportunity to take responsibility for leading the profession in the development and improvement of standards in this area of clinical practice.

Conclusion

While the investigation process established by the Health and Disability Commissioner Act is independent and impartial, the overall purpose of the Act is to promote and protect the rights of consumers. This includes the right of all consumers to safe, quality services. My aim as Commissioner is to continue to fulfil its purpose as consumer legislation and to be guided by the Act in exercising my powers and functions. Certainly there are areas that still need improvement. If I were to include any recommendations in my 'report card', they would be:

• The establishment of better standards in order to benchmark and monitor performance.
  
  
• Improved and consistent record keeping at all levels of the professions.
  
  
• All hospitals assigning a specific health professional ultimately responsible for overall care co-ordination for every consumer.
  
  
• Each individual in the service retains responsibility for individual service provision.
  
  
• All health professionals should receive formal 'communication' training as a compulsory component of their professional registration.
  
  
• Improved ongoing education of health professionals and deregistration of individuals who fail to participate in regular upskilling programmes. Professional Colleges enforcing members accountability and removing them from Colleges if they fail to keep up to date with current practices.
  
  
• Peer review occurring in all hospitals and service organisations.

I have been criticised by the medical profession for taking a view which differs from its own, on what constitutes appropriate standards. I would suggest to you that I have little choice when the profession fails to uphold basic standards such as record keeping particularly when the profession's own Code of Ethics refers to the need for accurate records of fact to be kept. The Code of Rights, a legal requirement for doctors and other health and disability service providers, refers to the need for co-operation between providers to ensure quality and continuity of services. On behalf of consumers the profession as a whole to simply must put more effort into establishing and maintaining standards, and more importantly be more courageous in upholding their own standards and taking to task those who don't.

All New Zealanders have a right to a quality health sector and each of you shares part of the responsibility for ensuring this is delivered. This country is unique in having a Code of Health and Disability Services Consumers' Rights, which has been legislated through Parliament. I encourage you to use it as a living document, which can guide both your practice and your health service delivery. However consumer's complaints are only one aspect of a quality system. Peer review/clinical governance/standards/professional input are other significant aspects, and I urge you to demand improvements in these areas. If you do not act, then the quality of health and disability services will never be maximised.