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Complaints: the good, the bad and the ugly

The First NZ Health Care Complaints Conference

Hamilton, 22 April 2002

Ron Paterson

Health and Disability Commissioner

Introduction

The theme of this conference - turning complaints into positives - is symptomatic of a global trend to learn from customer complaints so as to improve organisational performance. The message is a timely one for health care providers, in light of the increasing numbers of complaints, and a disturbingly high level of preventable adverse events. "Complaints by patients in hospitals about adverse events are a major, and untapped, existing source of consumer generated quality data that could be more effectively used to improve clinical practice," according to the authors of a proposal to undertake a national review of hospital complaints management in Australia.^[1]

Undoubtedly, many complaints do have the potential to improve the quality of care - this is the 'good' aspect of complaints. The other side of the coin is the potential of some complaints to corrode relationships and lead to defensive medical practice. These toxic effects are the 'bad', and sometimes 'ugly', aspect of complaints. As Health and Disability Commissioner I see the good, bad and ugly aspects of complaints on a daily basis.

Complaints about health professionals are at a record high, and injured patients are reported to find the complaints process "confusing, cumbersome, difficult to access and costly, both financially and emotionally".^[2] Phillida Bunkle MP has trenchantly criticised the current system: "Patients face a daunting series of obstacles in their search for accountability. The mechanisms set up to assist patients have become drafting gates, excluding the most seriously injured and least resourced."^[3]

Confidence in the ability of the New Zealand health and legal systems to respond to concerns about practitioners and systems found wanting is at an all-time low. The public sees professionals who are shielded from damages claims for negligence, reluctant to blow the whistle on errant colleagues, and slow to discipline substandard members; and a public health system that underfunds public hospitals and screening programmes, and fails to monitor and evaluate the quality of care delivered. There is often no follow-up. The situation has been described as a "medical emergency"^[4]. New Zealand risks being doomed to a cycle of public inquiries driven by political responses to media campaigns that fuel (and feed on) the public's "hue and cry"^[5] for medical accountability. We need to ensure that our complaints resolution mechanisms are workable and effective.

Why complain?

Many variables influence the decision to lodge a complaint. Patients and families are motivated by a need for an explanation, to understand what went wrong. They may seek rehabilitation and compensation for their injury or loss and suffering. They often have an altruistic desire to prevent the same thing happening again to someone else. They may look to have someone held accountable or disciplined.

There is often a recognisable pathology to a complaint. Symptoms include uncertainty, hurt and grief. Frequently - especially if a patient or their family is stonewalled by providers closing rank after an adverse event, or further traumatized by slow, bureaucratic and mystifying complaint processes - frustration and anger set in. Professor Paul Mullen has spoken of the skill with which complaint handling agencies often succeed in "growing a querulent".

These symptoms of individual malaise are often exacerbated by societal malaise. The Code of Health and Disability Services Consumers' Rights codifies the quintessential 1990's right - the right to complain. Health care, like other areas of New Zealand life, is in the grip of a culture of complaint.

The good - complaints as a quality improvement tool

It is often assumed that complaints to some form of statutory Health Ombudsman are an effective mechanism not only to resolve individual complaints, but also to improve the overall quality of health care. It is a laudable objective, and an understandable one for those who work as Health Commissioners. After all, it would be rather soul destroying to think that one's efforts are directed solely to the resolution of an endless stream of individual complaints, which may assist those individuals but have no broader impact. Commissioners find it comforting to believe that health disputes offer a "window of opportunity" to improve health services, and that "this quality improvement function is a major raison d'être of the Commissioners".^[6]

The inaugural Commissioner, Robyn Stent, saw the Code as "a quality improvement tool, a blueprint for customer service [that] encourages [providers] to incorporate its principles into training programmes and codes of practice".^[7] This view was echoed by a leading consumer advocate, Judi Strid, at a National Health Committee Quality Workshop:^[8]

The Code of Rights developed by the Health and Disability Commissioner's office could not be bettered as a framework for quality. It is consumer-focused and covers the dimensions of quality as well as consumer rights - with the focus on people getting the right advice, the right care, provided in the right manner, by the right person and the right outcome.

In investigating and seeking to resolve complaints, a Commissioner is little more than the ambulance at the bottom of the cliff if all that is achieved is a retrospective analysis of how and why a consumer's rights were breached. Assuming that the individual provider found to have breached the Code responds positively to recommendations to improve the standard of his or her practice, a modest victory for quality at the micro level (in relation to services provided by a single provider) may be claimed. But how does a Commissioner use the resolution of individual complaints to help build the fence at the top of the cliff, and secure improvements in quality at the macro level (in relation to services provided by health providers generally)? The answer lies in the use of reports on Commissioner investigations for educational purposes, and in systemic advocacy on behalf of consumers.

Educational reports

The New Zealand Parliament clearly envisaged an educational role for the Health and Disability Commissioner. The Commissioner is specifically required "to promote, by education and publicity, respect for and observance of the rights of health consumers" and "to make public statements and publish reports in relation to any matter affecting the rights of health consumers".^[9] In practice, this is achieved in the following ways: by media statements on matters of public concern, or on cases which the consumer takes to the media of his or her own accord; by publication of anonymised investigation reports on the Commissioner's website; and by sending anonymised copies of reports to the relevant College and/or professional body, the Ministry of Health (as the key government agency for the development of health policy and the funding and auditing of health providers), the Minister of Health, and relevant statutory agencies (such as the Mental Health Commission, in relation to mental health services). Since the scope of investigations, and the "generalisability" of report recommendations, vary greatly, a "horses for courses" approach is taken in determining when, and how, to use a specific report for educational purposes.

Robyn Stent's Canterbury Health Report (1998, Appendix I) and my Gisborne Hospital Report (2000, Appendix II) show the potential for Commissioner public hospital reports, and the independent investigation of staff complaints, to lead to an improvement in the quality of care and in patient safety.

Systemic advocacy

Findings and trend analysis from resolution of individual consumer complaints enable a Health Commissioner to undertake systemic advocacy on behalf of consumers. For this to occur, the independence and accountability of a Commissioner need to be fostered through statutory authority, dedicated funding and a requirement for reporting to the legislature and the public.^[10] As an independent statutory agency separate from the political and policy decision making process, a Commissioner is well placed to advance the interests of consumers, and to have a significant influence in shaping public policy debate. This may be achieved both by public reporting and media statements, and by bringing concerns to the attention of Ministers of Health, policy makers, regulators, funders, and professional bodies. The work of the Center for Health Care Rights in Sacramento, California has challenged the view that the primary function of Ombudsman programs should be to assist individual consumers, arguing that this is a bottomless task, with the goal instead being to use examples of individual consumer problems to drive systemic reforms for consumers.^[11] My Taranaki Healthcare Report (2001, Appendix III) is an example of the resolution of a serious complaint - about the death of a young man following substandard emergency department care - that provided answers for his family and advocated for improvements in the standard of emergency medicine throughout New Zealand.

A culture of blame

The response to adverse events is often characterised by a climate of blame. Former Chair of the Medical Practitioners Disciplinary Committee, Dr Dean Williams, once colourfully described some complainants as looking for "blood on the floor - preferably male, medical and Caucasian". All too often, when something goes wrong with a medical procedure, people search for a culpable individual to shoulder the blame. The traditional focus of employers, regulatory bodies, and the legal systems (including disciplinary process) has been the individual practitioner. Media focus is also often on individuals rather than systems. A guilty individual makes a better headline than a flawed system.

Obviously we do require effective mechanisms for dealing with individual clinicians whose actions display recklessness, incompetence or malice. Such individuals must be held to account for their actions. At the same time, we need to recognise that few adverse events are due to incompetence or malice, and that while human error plays a role in many adverse events, it is usually only the final link in a chain of interconnected problems. Most errors are attributable to the actions of competent professionals, practising in health care environments that are poorly designed to prevent errors and mitigate their consequences. Blaming the individual practitioner in this situation does nothing to prevent similar adverse events from occurring in the future. It does however create a great level of stress for the individual practitioner and for the entire profession as members wait anxiously for their turn to come.

A focus on finding individuals at fault when things go wrong is a key feature of a culture of blame. In this environment errors are covered up and the root causes of errors are not identified, allowing the same events to reoccur. Medical procedures remain unsafe, and when things go wrong again the outcry from the public and the media fuel demands for individual accountability, and the cycle of fear renews itself.

In a Commonwealth Fund study in the year 2000, 46% of New Zealand specialists reported that they were either discouraged or not encouraged to report medical errors, compared with 44% of United States specialists.^[12] It is remarkable that New Zealand appears to have a similar trend of under-reporting to the United States, given the much greater potential for malpractice liability in North America. Significant improvements in patient safety can only occur when this cycle of fear is broken and replaced with a culture of safety.

A culture of safety

As an independent, public advocate for patients, the Commissioner can play a key role in creating an environment to improve patient safety, by fostering a climate of safety that protects patients and supports health professionals. We need to accept that some error is inherent in all human activity, and design and implement systems that limit the incidence and adverse consequences of human errors. Unsafe systems create latent sources of error - "mistakes waiting to happen". In Peter Davis' study,^[13] systems errors were involved in nearly 30% of adverse events. If a nurse is exhausted at the end of a shift, subject to unrealistic time pressures in assessing a patient, or expected to be in two places at once, these are faults of the system, not the individual. An orthopaedic case in a public hospital last year is a classic example (Appendix IV). Other examples of systemic problems include inadequate training or supervision, lack of protocols, and delays in the provision of services.

A culture of safety addresses these issues, while still providing mechanisms for responding to problems with individuals. The aim is not to replace a blaming culture with a blameless one, but rather to have a just system, where the root causes of errors are analysed and addressed. In a culture of safety errors are acknowledged, discussed and analysed. It is safe to admit to a mistake and to share the learning from mistakes with colleagues. Over time, health care will become safer, and public confidence will improve.

Candour and closure

In commenting on investigations and apologies, the Bristol Inquiry made the following recommendation: "We believe that hospitals have a responsibility to be active and to investigate adverse events. Whenever it is clear that what went wrong is the result of action or inaction on the part of the hospital or its staff, they should be under a duty to be open and honest and to acknowledge this as early as possible. ?Saying sorry has nothing necessarily to do with admitting any fault. Rather it is an expression of concern for the situation in which patients find themselves ?^[14] I occasionally see reports of internal investigations written in a way that simply escalates the complaint. But I also see internal reports that describe clearly what happened and why, and record the changes that have been introduced as a result. When shared with patients and their families, such reports can help bring a sense of closure.

At the end of a long investigation many patients and their families are still not satisfied - there is no closure for them. They may not have got the answers they were looking for - an explanation of what went wrong, and why. Or they may disbelieve the answer they have been given, and suspect a conspiracy by health professionals - especially if an external investigation has relied on expert advice from another professional. They may suffer ongoing pain and disability, with no prospect of rehabilitation or compensation. They may see no evidence of credible change to prevent the same thing happening again to another patient. And they may regard the lack of any censure or discipline as evidence of a failure of accountability.

The bad and the ugly - the downside of complaints

Dr Peter Roberts recently likened the relationship between doctor and patients to a marriage in trouble: "If one party can criticise the other, without a balanced right of reply, then we, society, must somehow balance that. Codes and professions that essentially require us to turn the other cheek bind us. We must be reasonable and mature when there is no such expectation of patients or their families who desperately want to find someone to blame for what has happened to them and see them punished." ^[15]

There are indeed problems in the current relationship between patients and doctors. Aspects of the medico-legal environment have become toxic. In some cases the way in which current complaint mechanisms are working, and complaints, inquiries and disciplinary hearings are being reported in the media, is undermining the essential trust between patients and their carers. The volume of complaints and the negative publicity surrounding adverse events is fuelling a culture of complaint.

Patients often become victims when they suffer an adverse event. However, sometimes clinical staff become secondary victims during complaints and inquiry processes. Clearly the needs of a patient who has suffered an adverse event, and of a provider who is subject to a complaint, are different, and their support needs also vary. The Advocacy service is available to assist patients bringing a complaint. It is independent of the Commissioner's Office, since I am required to impartially investigate and report on complaints. Support should also be available for providers under investigation. The Colleges, NZMA, NZNO, and DHBs can play an important role in supporting colleagues and staff. But individual providers need to know that support is available, and be prepared to seek it.

The hostile media focus on medical mistakes is corrosive. But extravagant claims about medico-legal risk, and the need to practise defensive medicine, do a disservice to the medical profession and the public. New Zealand remains the safest place in the world to provide health care, with virtually no lawsuits (due to the ACC bar), and low insurance premiums. The patient complaints system is not punitive, with most complaints resolved at a low level, and a tiny number of disciplinary cases. Doctors and nurses will not find greener medico-legal pastures overseas.

Changes needed

Changes are needed to New Zealand's external complaints system. Current processes take too long, result in too many investigations and are stressful on all participants. There needs to be sense of perspective that reserves investigation by an independent Commissioner for more serious allegations. The Commissioner's Office can and will continue to make improvements to the present system, notably clearing the backlog and improving our efficiency. But changes to the current legal framework are also needed.

A draft Bill to be introduced to the House in May proposes some of the necessary changes. The Commissioner will be given more flexibility in resolving complaints. Fewer cases will proceed to formal investigation, and more cases will be referred back to the parties or to advocacy or mediation. Provisions for better information sharing between central agencies (HDC, ACC, the registration bodies and the Ministry of Health) will reduce the duplication of investigations into the same incident, although some duplication is inevitable given the different purposes of the various inquiries.

I believe that there should be a time limit on the bringing of complaints. The time would start to run from the time when the complainant first became aware of the problem. Cases involving sexual or financial exploitation could be exempt from a time limit. For all other cases a two-year limit could be imposed. The reality of investigating 'stale' complaints is that many of the parties are unavailable (having changed employer or moved to a different practice area), protocols and treatments have changed and the likelihood of the individual making the same mistake again is low.

These are relatively straightforward changes, which do not require a total overhaul of the complaints system. They will help HDC achieve its statutory mandate: "the fair, simple, speedy, and efficient resolution of complaints".^[16] We should be careful not to throw the baby out with the bath water, since wholesale reform would probably play into the hands of those who would prefer to see a return to a negligence system and damages awarded for malpractice.

Conclusion

Quality improvement gurus often refer to complaints as a treasure trove, which gives providers an opportunity to learn and lift their game. It is true that complaints resolution can provide a valuable opportunity for quality improvement. But we need to ensure that our complaints system promotes resolution, not retribution; learning, not lynching. The challenge is to minimise the potential toxic effects of complaints and to maximise the potential for complaints to lead to improvement in the quality of health care. Otherwise, we run the risk that complaints will prove to be toxic treasure.

Appendix I

Canterbury Health Report 1998

[Read here.]

In 1996, senior clinical staff at Christchurch Hospital made numerous approaches to management about concerns over restructuring and the adverse impact on quality. Frustrated by the lack of response, staff went public with their concerns about patient safety, particularly about a number of deaths in Emergency Department. Commissioner Robyn Stent initiated a major investigation into the operation of the hospital and found a number of systems failures that had compromised patient safety. She found a general lack of investment in quality control systems, and a lack of co-operation and communication between management and clinical staff. Junior staff were poorly supervised and were performing procedures with inadequate training and experience. The Canterbury Health Report included a raft of recommendations for change to management and clinical practices at Christchurch Hospital, and a specific recommendation to the Ministry of Health for introduction of a system of credentialling of medical staff in New Zealand public hospitals.

In response to the Canterbury Health Report, a national medical credentialling project was commenced in 1999. In March 2000, the Ministry of Health released the document 'Toward Clinical Excellence', setting out a framework for the credentialling of senior medical officers. It is expected that the Health Practitioners Competency Assurance Bill will require evidence of ongoing competence for the issue of annual practising certificates. The new regime will enable health professional registration bodies to identify the scope of practice of a practitioner and require evidence of competence to practise in a particular setting.

Appendix II

Gisborne Hospital Report 2001

[Read here.]

In June 2000, the New Zealand Nurses Organisation wrote to the Minister of Health and spoke to the media about concerns raised by nurses employed at Gisborne Hospital. The admitted re-use of syringes by a visiting anaesthetist and the potential risk of disease transmission to 134 surgical patients were widely publicised. In July 2000 the hospital announced that its laboratory in carrying out Prostate Specific Antigen (PSA) testing had made an error. One hundred and seventeen patients were notified of the error and advised to see their general practitioner about the need for re-testing. Against this background, I initiated an inquiry into patient care and quality assurance systems at Gisborne Hospital. In my Gisborne Hospital Report, I found specific breaches of the Code in the operating theatre (due to the re-use of syringes) and in the laboratory (due to failures of quality control and human error in relation to PSA test results). I also found breaches of the duties of care and co-ordination of a hospital provider, due to the failure of Gisborne Hospital to have adequate quality assurance and incident reporting systems in place.

Gisborne Hospital's Incident and Complaint Management Policy was unsatisfactory in a number of respects. There was no differentiation between incidents where harm could have occurred ("near misses") and adverse events where harm did occur. There were no guidelines for the completion of incident reports, no mechanism to track filed reports, and inconsistency about which incidents were drawn to the attention of senior management. Where incidents were reported, in the period under review, lipservice was paid to the concept of root cause analysis, but staff personally involved in the incidents experienced criticism and blame. Incident reporters often received no feedback. Quality and continuity of patient care was potentially compromised by the failure to have an effective incident reporting system. The report included 34 recommendations related to incident reporting and complaints handling, consistent with the approach of the British National Health Service report An Organisation with a Memory, that analysis of adverse events in health care should focus on root causes, and not simply the proximal events or human errors in isolation of wider processes and systems. A Ministry of Health audit at the end of 2001 confirmed that the report's recommendations have been implemented, and senior management and clinical staff at Gisborne Hospital report improved morale.

Appendix III

Taranaki Healthcare Report 2001

[Read here.]

A report on an investigation into the care provided to a seriously injured young man by Taranaki Hospital Emergency Department has highlighted serious safety concerns about New Zealand Emergency Departments. The investigation was undertaken following the death of 19-year-old Tommy Whittaker, whose father complained to the Commissioner. Expert advice from an emergency medicine specialist indicated that staffing levels in Taranaki Hospital fell below international standards and that similar staffing problems existed in Emergency Departments throughout the country.

In 1997 Taranaki Hospital had one medical staff member, often a first year house surgeon, rostered in charge of all departments except obstetrics between 10.30pm and 8.00am. Ideally such cover should be provided by a third year or, at a minimum, second year house surgeon. The hospital failed to provide its staff with adequate guidelines for neurological observations: observations were carried out hourly, rather than half hourly which is the national and international standard. A system for staff to contact on-call registrars or consultants for advice was in place but no guidance was given as to what staff should do if the on-call staff member failed to respond as happened in this case.

The Taranaki Healthcare Report recommended that the Ministry of Health review the staffing levels and competence of Emergency Department staff. Following widespread media publicity, the Australasian College of Emergency Medicine called for New Zealand Emergency Departments to be brought up to international standards. Emergency Department experience is important for junior doctors, but they need careful supervision and should not be left in sole charge. The reality of staffing shortages, particularly in rural areas, may mean that international standards are still some way away for some departments. However the report has prompted an audit of Emergency Departments by the Ministry of Health, which specialists expect will lead to improved care.

Appendix IV

Orthopaedic case study 2001

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A recent orthopaedic case in a public hospital illustrates how a combination of events can set the scene for human error to occur. Six factors were identified as contributing to the errors made by nursing staff. The case involved complex, elective spinal surgery on a 12-year-old girl, which did not start until after 5:00pm. The surgery had to be performed in the eye theatre as the orthopaedic theatre was being used for an emergency case. On several occasions during the surgery the circulating nurse had to leave the theatre to retrieve equipment. This left only the surgeon and the scrub nurse who was doubling as the surgical assistant in the theatre. There were two wound sites involved in the operation and both nurses were working overtime. Despite not having completed the final instrument and swab count at wound closure, both nurses subsequently signed documentation indicating that the count had been carried out and was correct. In fact, two swabs had been left in the patient requiring surgical removal and drainage of the wound to clear an infection that developed because of the retained swabs.

Although the nurses were found to have breached the Code and were accountable for their omissions, their employer was also found in breach for allowing the situation to develop where staff were expected to perform safely in an environment with the circumstances stacked against them. This is a classic case of competent professionals making a basic error when working under pressure without adequate resources, undertaking surgery that could have been rescheduled to a time when a more appropriately equipped theatre, a surgical assistant and fresh nursing staff were available.

The case also serves as an example of a breach of the duty of candour by the health professionals and management involved. The hospital carried out its own investigation and found, as did my later investigation, that the retained swabs and resultant infection requiring further surgery and prolonged hospitalisation was caused by the failure of members of its staff to carry out a basic procedure designed to prevent such incidents. There was no complexity about this aspect of the case. The staff members responsible wanted to apologise to the family but were prevented from doing so by management even after my provisional findings had been forwarded to them.

Reference:

^[1] Newby L, Carter M, Hyde J. Consumer Complaints - Management Practice in Australian Hospitals: Consumer Input into Quality Improvement, March 2002.

^[2] Cull H. Review of Processes Concerning Adverse Medical Events. Wellington: 2001 (www.moh.govt.nz), p 15.

^[3] Submission to Health Select Committee Inquiry into the adverse effects on women as a result of treatment by Dr Graham Parry, November 2001.

^[4] The Dominion, Editorial, 26 June 2001.

^[5] Parry v Medical Practitioners Disciplinary Tribunal (District Court, Auckland, 30 May 2001), para 85.

^[6] Wilson B, "Health Disputes: A 'Window of Opportunity' to Improve Health Services" in Freckleton, I, and Petersen, K, (eds) Controversies in Health Law (The Federation Press, NSW, 1999) 179. See also Horvarth, who notes that health complaint watchdogs do not merely settle individual complaints but, in so doing, improve the standards of care across health services (ibid).

^[7]] Report of the Health and Disability Commissioner for the year ended 1998 (Health and Disability Commissioner, Auckland, 1998) 5.

^[8] Report of National Health Committee Quality Workshop, Wellington, 21 February 2001 (Ministry of Health, Wellington, 2001).

^[9] The Health and Disability Commissioner Act 1994, s 14(1)(c), (d).

^[10] Willcox S. Consumer Protection in Private Health Insurance: The Role of Consumer Complaints. Washington DC: June 2000 (unpublished report to the US Department of Health and Human Services) 3. aspe.hhs.gov/health/reports/consumer/phi/index.htm (1 February 2002).

^[11] Willcox S. Consumer Protection in Private Health Insurance: The Role of Consumer Complaints. Washington DC: June 2000 (unpublished report to the US Department of Health and Human Services) 128. aspe.hhs.gov/health/reports/consumer/phi/index.htm (1 February 2002).

^[12] "Doctors in five countries see decline in quality of care" (Media release, The Commonwealth Fund, 12 October 2000).

^[12] "Doctors in five countries see decline in quality of care" (Media release, The Commonwealth Fund, 12 October 2000).

^[13] Davis P et al. Adverse events in New Zealand Public Hospitals: Principal Findings From a National Survey. Ministry of Health Occasional Paper No 3, Wellington December 2001.

^[14] The Bristol Royal Infirmary Inquiry Report, ch 23 p 53; www.bristol-inquiry.org.uk

^[15] Association of Salaried Medical Specialists, Submission to Health Select Committee Inquiry into the adverse effects on women as a result of treatment by Dr Graham Parry, November 2001.

^[16] The Health and Disability Commissioner Act 1994, s 6.