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Empowering Consumers through Legislation. The New South Wales Approach

Introduction

The purpose of this paper is to explain how health consumers are empowered in New South Wales through legislation, with primary focus on the complaints process under the Health Care Complaints Act, 1993. The paper will also detail some of the consumer rights recognised in New South Wales.

Empowering health consumers is very important, and one way to achieve this is to provide for their rights through legislation. Doing this reinforces that health services exists for consumers and recognises that the general health of the community is dependent upon consumers having the right to access these services and to be provided with quality health care. In fact, quality health care in both its preventative and remedial forms is now viewed as a fundamental right which directly impacts upon the quality of life.

New South Wales has emphasised in recent years that the focus of health services must be the consumer or customer and has endeavoured to pursue this focus by upholding consumer rights in legislation. The then Minister for Health in a document entitled "Our Health Together" stated in 1993:

"Around the state in hospital after hospital, customer care initiatives are changing institutions. Customer focus means giving priority to the needs of the people, rather than the system.

It means turning our every effort to delivering high quality, appropriate health services to a maximum number of people. It means treating patients as people..."

The important message is that we should listen to what people have to say and determine how we can act upon it.

Customer care is linked to clinical care improvements. That's why it's important. Quality is the keynote we seek from health.

To everyone, good health is a basic daily need, a basic human right and everyone understands the relationship between good health and the quality of their life.

Governments who want successful health policy

• to maximise opportunities for individuals to have good health
  
  
• to lower the risks that cause ill health across the community; and
  
  
• to ensure that the highest quality treatment is available appropriate treatment, the least intrusive and disruptive treatment and constantly improving treatment

Good health policy is about creating and sustaining good health at every point in our lives; it's about quality of life.

Success must be measured by the quality of life of our community and on reducing the need for people to seek health care;

One major step forward in pursuing this consumer focus and ensuring that the highest quality of treatment is available to them was the establishment of the Health Care Complaints Commission on 1 July 1994. In the second reading speech for the Health Care Complaints Act, 1993 which estabished^[1] the Commission the then Minister of Health stated:

"...I believe balances the interests of both consumers and health providers in the delivery of health care in New South Wales. As I have previously stated the Health Care Complaints Bill heralds a new era in the resolution of health complaints in this State, focusing on quality and standards of care and the patient as a consumer of health services."

The Act had a number of purposes. The main purpose was to establish an independent statutory body in NSW to deal with complaints against health practitioners and health care institutions in both the public and private sector within a legislative framework.

The other purposes were stated in the objects of the Act ^[2] as follows:

• to facilitate the maintenance of standards of health services in New South Wales
  
  
• to promote the rights of clients in New South Wales health system by providing clear and easily accessible mechanisms for the resolution of complaints
  
  
• to facilitate the dissemination of information about clients' rights throughout the health system
  
  
• to provide an independent mechanism for the prosecution of disciplinary action against health practitioners who are registered under health registration Acts.

In relation to health practitioners and in recognition of the need for better accountability and scrutiny of the professions, the Act established a co-operative approach between the Commission, health registration Boards and the health professions to properly deal with complaints with a view to ensuring maintenance of professional standards, protection of the public from incompetent and unethical practitioners and maintenance of public confidence in the professions. This co-operative, collaborative and public interest approach is fundamental to the Act and the way complaints are handled against practitioners.

The Commission has now had considerable experience with the Act. The basic principles underpinning the legislation remain highly relevant and sound. The public interest complaints model with one statutory Commission investigating and prosecuting complaints is very effective and has gone a long way to maintaining public confidence in the health system.

2. Rights

 

Consumers' interest in, and awareness of, issues in the delivery of health services has stimulated debate about the rights of patients. This debate has resulted in the formulation of widely quoted statements about the different rights patients may assert.

Some of the rights asserted have a foundation in law, or are recognised as enforceable law, whilst other asserted "rights" are based on, moral principles or on common practice. As was well expressed in a recent judgment:

"The word right is used in a variety of different senses, both popular and jurisprudential. It may be used as importing a positive duty in some other individual for the non-performance of which the law will provide an appropriate remedy, as in the case of a right to the performance of a contract. It may signify merely a privilege conferring no corresponding interference, such as the right to walk on the public highway. It may signify no more than the hope of or aspiration to a social order which will permit the exercise of that which is perceived as an essential liberty, such as for instance, the so-called 'right to work' or a 'right' of personal privacy." (in re K.D. (A minor) (1988) 2 W.I.R. 39 at p. 412 per lord Oliver)

For the purposes of this paper a right can be viewed as an entitlement to be exercised by an individual based on a societal value or principle which is seen as fundamental to quality of life and which may or may not be enforceable at law.

Rights founded in statute and common law or enforceable by administrative action include:

• Right to be treated with reasonable care.
  
  
• Right not to be abandoned.
  
  
• Right to prompt emergency treatment
  
  
• Right to refuse/consent to treatment.
  
  
• Right to leave hospital at any time.
  
  
• Right to be informed about proposed treatment/health care system
  
  
• Right to confidentiality.
  
  
• Right of patient to access medical files.
  
  
• Right not to be discriminated against.
  
  
• Right to lodge a complaint.
  
  
• Right to stay with one's child.
  
  
• Right to access grievance procedures.
  
  
• Right to self-determination.

Rights established by common practice include:

• Right to have access to adequately qualified and competent health providers.
  
  
• Right to be free from mental and physical abuse
  
  
• Right to a second opinion
  
  
• Right to assistance from qualified health interpreters
  
  
• Right to know the costs involved in the proposed treatment
  
  
• Right to know what services are available in a hospital
  
  
• Right to privacy
  
  
• Right to seek legal advice about treatment
  
  
• Right to be treated with consideration and dignity including recognition of cultural and religious beliefs
  
  
• Right to die with dignity
  
  
• Right to preserve family and other significant relationships

Some of the responsibilities of consumers include:

• Know medical history including medication
  
  
• Answer questions about health frankly and honestly
  
  
• Explain any financial, religious or cultural issues
  
  
• Comply with treatment
  
  
• Advice of other treating practitioners
  
  
• Conscious of well-being or right of other patients or staff
  
  
• Keep appointments
  
  
• Be informed.

Some of the above rights have been incorporated into legislation. An example includes the Mental Health Act 1990 which provides in s.4 that it is an object of the Act to give persons who are mentally ill or mentally disordered access to appropriate care while protecting the civil rights of those persons. Section 4 also provides that it is the intention of Parliament that in providing for the care and treatment of persons who are mentally ill or who are mentally disordered, any restriction on the liberty of patients and other persons who are mentally ill or mentally disordered and any interference with their rights, dignity and self-respect are kept to the minimum necessary in the circumstances. The Act also makes provision for legal representation (s.288) and assistance by interpreters (s.292). It also creates an offence to willfully strike, wound, ill-treat or willfully neglect a patient or person detained in a hospital (s.298).

Another example is the Guardianship Act 1987 which states in s.4 that it is the duty of everyone exercising functions under the Act with respect to persons who have disabilities to observe the following principles:

a) the welfare and interests of such persons should be given paramount considerations;

b) the freedom of decision and freedom of action of such persons should be restricted as little as possible;

c) such persons should be encouraged, as far as possible to live a normal life in the community;

d) the views of such persons in relation to the exercise of those functions should be taken into consideration;

e) the importance of preserving the family relationships and the cultural linguistic environments of such persons should be recognised;

f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs;

g) such persons should be protected from neglect, abuse and exploitation;

h) the community should be encouraged to apply and promote these principles.

A further example is the Private Hospitals and Day Procedures Centres Act 1988 which sets out required standards of patient care and also deals with patient access to medical records. Section 7 of the Act and Regulation 5, sets out design and construction of premises, furnishing and equipping of wards, provision of medical, surgical and nursing equipment; medical advisory committee and clinical standards; child patients; confidentiality of records and patient access to those records.

There is also legislation involving quality of products and representations made about these products by sellers and suppliers which gives consumers an avenue where products are defective and representations false or misleading. An example is the Fair Trading Act 1987.

The right to complain about health services is provided for in Division 1 of Part 2 of the Health Care Complaints Act where s.8 provides that a complaint can be made by any person including the client concerned. Complaints can be made concerning the professional conduct of a health practitioner or a health service which affects the management or care of an individual client.

3. Health Care Complaints Commission

 

The Commission is established by s.75 of the Health Care Complaints Act and is constituted by a Commissioner appointed by the Governor (s.76).

The Mission Statement is:

"The Health Care Complaints Commission acts in the public interest by investigating, monitoring, reviewing and resolving complaints about health care with a view to, maintaining and improving the quality of health care services in New South Wales."

The functions of the Commission include^[5]

• to receive and deal with complaints relating to the professional conduct of health practitioners, concerning the clinical management or care of individual clients by health service providers, referred to the Commission by a health registration authority under a health registration Act (eg. Nurses Registration Board, Medical Board).
  
  
• to assess complaints received and refer to conciliation or investigation as appropriate.
  
  
• to make complaints concerning the professional conduct of health practitioners and to prosecute those complaints before appropriate bodies such as Tribunals, Professional Standards Committees.
  
  
• to report on any action the Commission considers ought to be taken following the investigation of a complaint if the complaint is found proved in whole or in part.
  
  
• to monitor, identify and advise the Minister on trends in complaints
  
  
• to publish and distribute information concerning tha making of complaints
  
  
• to provide information to health service providers, professional and educational bodies concerning the trends in complaints
  
  
• to consult with groups which have an interest in services about the complaints process and in the dissemination of information concerning the complaints process.

The Act also provides for the following:

• complaints to be investigated expeditiously
  
  
• notification of complaints to registration boards and practitioners and their employers
  
  
• assessment of complaints within 60 days of receipt
  
  
• conciliation of complaints where appropriate consultation with registration boards
  
  
• powers of entry, search and seizure including search warrant
  
  
• providing a practitioner with an opportunity to make submissions if adverse comment or disciplinary action is to be made following investigation of a complaint
  
  
• creates an offence for the intimidation or bribery of a complainant
  
  
• creates an offence where a person refuses to employ, dismisses or detrimentally affects a complainant.

The Commission now receives about 1500 to 1700 complaints annually covering the whole spectrum of health care facilities and health practitioners. In 1996/97 10-11% of all complaints resulted in disciplinary action under a health registration Act. 27% of complaints were investigated and of these about 47% were not substantiated. Of practitioners most complaints were against medical practitioners (78%) and then nurses (6%).

Under s.23 of the Act the Commission must investigate a complaint if the registration authority is of the opinion that the complaint should be investigated or it appears to the Commission that the complaint:

• raises a significant issue of public health or safety, or
  
  
• raises a significant question as to the appropriate care or treatment of a client by a health service provider, or
  
  
• provides grounds for disciplinary action against a health practitioner, or
  
  
• involves gross negligence on the part of a health practitioner.

The Commission is very conscious of its statutory obligations to consumers. Two important initiatives that the Commission has introduced to promote the rights of consumers and provide a clear and easily accessible mechanism for the resolution of complaints are the establishment of the Patient Support Office and the position of Complainant Liaison Officer.

The role of the Patient Support Office is to assist health consumers to uphold their rights and resolve concerns by facilitating self advocacy and/or helping consumers through negotiation and discussion

The Office achieves this role by:

• assisting customers through the provision of information on appropriate avenues to resolve their concerns.
  
  
• facilitating the fair, simple, timely and efficient resolution of concerns.
  
  
• providing information about health services and health consumer rights.
  
  
• networking with community groups to provide information and better understanding of the health system, health, consumer rights and the patient support office
  
  
• referring consumers to other agencies where appropriate
  
  
• assisting consumers resolve issues through support, advocacy or mediation with health services or health providers.

The Office is designed to:

• provide an avenue for quick direct resolution of health concerns
  
  
• assist communication between consumers and providers
  
  
• provide a less formal and responsive complaints service to health consumers.

The office receives hundreds of inquiries a month. Seven officers are employed and are located in various area health services in the city and country.

The Complainant Liaison Officer position was established in recognition of the trauma and other problems that complainants in sexual misconduct complaints face. The principal role of the officer is to provide support to the complainant throughout the investigation and disciplinary process. This includes providing information and referring complainants to other government or community organisation for help where necessary.

Another very important initiative was to establish the Consumer Consultative Committee as a direct mechanism for consumer input into the complaints process. Recognition of consumers in guiding and developing the complaints system is an essential element in health accountability. The Committee comprises of members of peak consumer organisations in NSW and provides timely advice and feedback to the Commission on:

• consumer complaints about health services, generally
  
  
• expected standards of health service delivery.
  
  
• public interest issues relevant to the Commission
  
  
• policy issues raised by the Commission.

The purpose of the Committee is to provide a core group of individuals, each with expertise from a consumer'sperspective of a range of health issues, with whom the Commissioner can consult.

4. The Nature of Disciplinary Proceedings - Protection and Standards

 

There are often misconceptions on the part of health practitioners and consumers about the nature and purpose of disciplinary proceedings. Proceedings are often perceived as punitive when in fact proceedings are designed to be protective in nature

Whilst there can be adverse consequences flowing from disciplinary proceedings in relation to a practitioners registration, reputation and livelihood the primary purpose of proceedings is to protect the community and to maintain the highest possible ethical and clinical standards of the relevant profession. The standards exist to ensure that patients receive quality health care from competent practitioners. In upholding standards disciplinary bodies act to enforce a consumer'sright to quality health care.

In NSW the eleven health registration Acts provide the legislative mechanism for registration of health practitioners, and the prosecution of disciplinary complaints. Protection and standards is the focus that permeates all the Acts.

An example is the registration requirements for medical practitioners. Under the Medical Practice Act 1992 a person can be registered as a medical practitioner if they are the holder of the prescribed qualifications, have the prescribed experience, and satisfy the Medical Board that they are of good character. These provisions recognise that the nature of medical practice demands from its practitioners the highest possible ethical and clinical standards and meets one of the functions of the Medical Board which is to promote and maintain high standards of medical practice. ^[6]

The registration Acts in NSW include:

1. Chiropractors and Osteopaths Act 1991

2. Dentists Act 1989

3. Dental Technicians Registration Act 1975:

4. Medical practice Act 1992

5. Nurses Act 1991.

6. Optical Dispensers Act 1963

7. Optometrist's Act 1930

8. Pharmacy Act 1964

9. Podiatrists Act 1989

10. Physiotherapists Registration Act 1945

11. Psychologists Act 1989

There are some health practitioners who are not governed by registration Acts such as social workers, dietitians, occupational therapists, acupuncturists and naturopaths. In such cases disciplinary proceedings cannot be instituted for misconduct, however, the relevant professional association may be able to take appropriate action if the practitioner is a member. An employer could also take industrial action and if criminal activity is involved the misconduct can be referred to the police.

Disciplinary proceedings are commenced by lodging a formal complaint under the relevant health registration Act. Under some Acts a complaint can allege that a practitioner:

a) has been convicted of an offence;

b) is an habitual drunkard or is addicted to any deleterious drug;

c) has been guilty of unsatisfactory professional conduct

d) has been guilty of professional misconduct;

e) does not have sufficient physical or mental capacity to practice

f) is not of good character.

Unsatisfactory professional misconduct includes demonstration of a lack of adequate knowledge, experience, skill, judgement or care and any other improper or unethical conduct.

Once a complaint is made it is either referred to a Board, Professional Standards Committee or Tribunal depending upon the disciplinary bodies available under the registration Act and the nature of the complaint. Following referral an inquiry is held into the complaint. A disciplinary body may conduct the proceedings as it thinks fit and is not bound by the rules of evidence.

A number of cases confirm the protective nature of proceedings and give useful instruction on matters to be considered by a disciplinary body declaring that protection.

In Mr D. (Pharmacy Board, unreported 14th August, 1991) the Board stated at page 7:

"This Board takes the view that the protection of the public is paramount when considering allegations of professional misconduct. Pharmacists have been entrusted with the dispensing and supply to the public of such drugs and that responsibility includes ensuring that the relevant legislative provisions are complied with and that the pharmacist does not abuse the privileges which accompany registration as a pharmacist."

In Dr H. (Medical Tribunal 14th December, 1990) the Tribunal stated at pages 6 and 7:

"the function of this Tribunal is not to punish but to uphold the standards of the profession and to protect the community. The protection of the community is best met by the existence of high standards and the adherence by the profession to those standards. It is essential that the community can repose absolute trust in the members of the profession."

In Dr R. (Medical Tribunal 5th May, 1993) the Tribunal stated at page 18:

'It is now necessary to examine the principles of law which this Tribunal should apply when determining the appropriate orders under s.32R of the Medical Practitioners Act. These principles may be summarised as follows:

1. The purpose of an order under s.32R is to protect the public and punish the practitioner. (See Buttsworth -v- Walton Court of Appeal, unreported, 3rd October 1991).

2. The protection of the public includes maintaining the standards of the medical profession and maintaining public confidence in that profession.

3. The protection of the public involves consideration of the risk of the respondent re-offending, his contrition and the nature and extent of the harm occasioned to the patient."

In Walton -V- Gill, Herron and Gardiner 1993 177 CLR 378 (High Court 29th April,1993) Mason CJ, Deane J. and Dawson J. stated at page 395 and 396:

"The jurisdiction of the Tribunal, which is not a court in the strictest sense, is essentially protective - i.e. protective of the public in character...In particular, in deciding whether a permanent stay of disciplinary proceedings in the Tribunal should be ordered, consideration will necessarily be given to the protective character of such proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners."

Brennan J stated at page 411:

"The jurisdiction of the Tribunal exists in order that patients be protected and that the public know that patients are protected against, inter alia, professional misconduct. The protection is afforded by the statutory powers of the Tribunal which enable the Tribunal publicly to declare that professional misconduct has been proved and to impose on a medical practitioner an appropriate disciplinary penalty. Those powers are designed not only to do a measure of justice as between a medical practitioner and his or her patient or to impose an appropriate penalty for professional misconduct but also to declare and enforce proper professional standards."

In HCCC -V- Dr L 41 NSWLR 630 (Court of Appeal 8 August 1997) the Court stated at page 630:

"Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession"

The Court also stated at page 638:

"Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical Would not otherwise accept from the doctor. oblige doctors to use the opportunities afforded them for such conduct for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe and expect their colleagues to observe."

These cases confirm that disciplinary proceedings are not concerned with assigning blame or punishment even though a practitioner can, suffer a penalty in the sense of having disciplinary orders made. Proceedings are concerned with the proper and fair prosecution of complaints in the public interest bearing in mind the protective purposes of the jurisdiction. Proceedings are focused on protecting patients from incompetent practitioners, maintaining professional standards and maintaining public confidence and trust in health professions and practitioners.

5. Conclusion

 

New South Wales has endeavoured to empower health consumers by focusing health services on their needs and by upholding their rights in legislation. The State had attempted to be proactive in setting minimum licensing standards, monitoring professional standards, focusing the complaints system on the public interest and educating health service providers about rights and expected standards.

Complaints legislation must always be focused on the maintenance of high ethical and clinical standards so that consumers receive the best possible health care available. Health care is compromised when health facilities and health practitioners fail to maintain high standards. The consequences for patients can sometimes be tragic and irreversible.

An independent statutory mechanism for the investigation of complaints and prosecution of disciplinary proceedings is vital to upholding consumer interests. It facilitates public confidence in health professions and the health system generally by ensuring that complaints are investigated and prosecuted in, an impartial and fair manner and health service providers are held accountable for their conduct.

Complaints and disciplinary proceedings provide a valuable insight into what problems occur when health practitioners and health facilities fail to maintain high standards and also provide guidance on actions that practitioners can take to avoid complaints being made against them from a community that now demands quality health services as a right.

Practitioners must learn to see themselves from the perspective of their patients and the community. They must maintain the high ethical and clinical standards expected of them by their profession. Good communication with patients and updating clinical knowledge is important. Maintaining good medical records, consulting with colleagues and avoiding professional isolation are also very important.

There has to be a realisation that accountability for conduct and the establishment of appropriate and effective complaint mechanisms is a priority for governments, professions health registration boards and consumers to ensure maintenance of standards and delivery of quality health services. Consumers should applaud governments that act in the public interest by establishing such mechanisms thereby upholding their right to quality health services.

The last decade has seen enormous changes. Technology and the changing face of health services make it imperative that the whole community engage in public debate about the quality and delivery of these services. Consumer health rights should be central to any debate because rights are a statement of the values and beliefs of the community and a statement of the community's ideology and expectation of the health care system.

REFERENCES

^[1]. NSW Health: Our Health Together 3 April 1993

^[2]. Section 3 Health Care Complaints Act 1993.

^[3]. CCH Australian Health and Medical Law 27-120.

^[4]. Section 7 Health Care Complaints Act 1993.

^[5]. Section 80 Health Care Complaints Act; 1993.

^[6]. Section 132 Medical Practice Act 1992.