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Fine-Tuning or Overhaul? Changes to the Current Complaints Mechanisms
Presentation to the LexisNexis Medico-Legal Conference
2002 Auckland
2 May 2002
Ron Paterson
Introduction
Six years have passed since the
establishment of the Health and Disability Commissioner and the
Code of Health and Disability Services Consumers' Rights. Now is a
good time to step back and evaluate the success of current
complaints mechanisms, review the problems reported in the Cull
Report, and consider the impact of proposed law changes on
complainants and providers.
Overview of the current
system
Health and Disability
Commissioner Act 1994
The Report of the Cervical Cancer
Inquiry[1]
marked a sea change in public attitudes to the medical profession,
as patients challenged the traditional approach of beneficence and
paternalism. The Report recommended statutory recognition of
patients' rights, and led to the appointment of publicly funded
patient advocates and the enactment of the Health and Disability
Commissioner Act 1994 (HDC Act).
The purpose of the Act is to promote
and protect the rights of health consumers and disability services
consumers and, to that end, to facilitate the resolution of
complaints relating to infringements of those rights.[2]
The Health and Disability Commissioner (the Commissioner), an
independent statutory Ombudsman, was appointed to develop and
enforce a Code of Health and Disability Services Consumers' Rights
(the Code).[3]
It is the function of the Commissioner to investigate any action of
a health care provider ... where that action is or appears to be in
breach of the Code.[6]
Code of Health and Disability
Services Consumers' Rights
The ten rights set out in the Code
include the right to be treated with respect, to be free from
discrimination or exploitation, to dignity and independence, to
effective communication, to be fully informed and to give or
withhold consent, to services of an appropriate standard, and to
complain. The Commissioner's jurisdiction is restricted to the
quality of service delivery; it does not cover issues of funding or
entitlement to any particular service. The Code applies to any
person or organisation holding themselves out as providing a health
care of disability service, whether or not any charge is made for
those services.[4]
Complaints process
Any person (not just the actual
consumer) may make a complaint to the Commissioner if they believe
that there has been a breach of the Code. Complaints are usually
received from consumers or their families, and can be made verbally
or in writing. All complaints made to statutory registration
bodies, such as the Medical Council, must be referred to the
Commissioner. Where concerns have been brought to the
Commissioner's attention but no complaint has been laid, an
investigation may be commenced on the Commissioner's own
initiative.
In April 2002 the Commissioner
received 89 complaints. At this rate we will total 1180 complaints
for the year (down 16 percent on last year). At times it feels as
though the Commissioner's Office is bailing a leaky boat, with
investigation staff continually facing the challenge of closing old
files faster than new ones are opened. There have been significant
improvements in the time taken to complete investigations.
Typically, investigations take 6 to 9 months to close, but a
complex investigation involving a large number of providers in a
hospital setting may take 1-2 years to close.
The Commissioner has very limited
discretion to take no action on trivial or vexatious complaints, or
complaints not made in good faith.[4]
Almost every complaint alleging substandard health care or
disability services provided after 1 July 1996 must be investigated
or referred to advocacy.[7]
Low level complaints
resolution
The statutory framework supports low
level complaints resolution. The role of the Commissioner is to
promote and protect the rights of consumers. This is usually best
achieved through resolution not retribution, learning not lynching.
Patient advocacy has proved to be a very successful means of
resolving complaints that appear to raise no issues of
exploitation, incompetence or public safety.
Investigation process
The investigation process is
impartial, independent and subject to the rules of natural justice.
In the 1997 case of Nicholls, the High Court affirmed that the
Commissioner is empowered to investigate systems issues in addition
to the actions of individuals[8].
Providers are provided with a copy of the complaint letter, and
given an opportunity to respond. As part of the investigation
process, the Commissioner will seek expert advice on clinical
issues. Expert advisors are nominated by the relevant professional
body, and named in the report. At any stage during the
investigation, the Commissioner may refer the matter to an advocate
to seek to facilitate a resolution of the complaint, or to an
independent mediator in an attempt to reach a settlement. At the
end of the investigation, if the matter has not been resolved, the
Commissioner forms a provisional opinion, and then a final opinion
as to whether or not the Code has been breached.
The present HDC Act is a blunt
complaint-resolution tool. In many cases the language of
'complaint' and 'breach' is unhelpful, but there are no gradations
allowed for within the Act. A breach finding may result from a
minor lapse or a major shortcoming. Mitigating circumstances are
taken into account in determining any follow-up actions. A final
breach opinion usually includes a series of recommendations. Other
possible sanctions include referral to the professional body for
competence review, or referral to the Director of Proceedings for
consideration of disciplinary action in the most serious cases.
Gatekeeper role of the
Commissioner
Under the current complaints scheme,
the Commissioner plays an important gatekeeper role. Statutory
registration bodies, such as the Medical Council, may not take any
disciplinary action on a complaint until the Commissioner's Office
has dealt with the matter and decided to take no further action.
(It is only disciplinary action that is suspended. For example, the
Medical Council may still consider a member's fitness or competence
to practise.) The Act currently requires referral to the Director
of Proceedings as a trigger for an individual consumer's claim
before the Human Rights Review Tribunal. This seems to be an
accident of statutory drafting. The Accident Compensation bar
already poses a significant disincentive to injured health and
disability consumers; it seems inappropriate to impose another
barrier in a statute intended to promote consumers' rights. There
is no good reason why access to the Human Rights Review Tribunal is
currently more restrictive for health and disability consumers than
for privacy or human rights matters.
Referrals to the Director of
Proceedings are uncommon. Of 538 matters investigated by the HDC in
the year to June 2001 only 26 were referred to the Director of
Proceedings. Twelve of those cases involved doctors (of 111 found
to have breached the Code of Rights). Of the 26 cases referred, 10
have been heard to completion resulting in 7 successful
prosecutions. There has been a significant increase in hearings
since June 2001, but this is largely the result of an influx of
referrals to the Director of Proceedings at the end of June 2001
when a number of older, more serious files were closed.[9]
Morag McDowell, the Director of Proceedings recently commented that
"Given the many thousands of consultations that occur in a given
year, medical practitioners can take comfort that they are not
under siege from the disciplinary process".[10]
Interface with other
agencies
The Office of the Commissioner
interacts with many other agencies on a daily basis. Protocols have
been established between the Commissioner, the Accident
Compensation Corporation (ACC) and the Medical Council for sharing
information on medical misadventure claims and complaints from
health and disability consumers. When a complaint is received, the
Commissioner endeavours to find out whether the complaint is the
subject of a Coroner's inquest or independent inquiry, and if so,
the investigation team seeks to avoid duplicating effort, making
use of information previously gathered. Professional bodies are
routinely notified of breach findings, and ACC may be sent opinions
relating to complaints that are the subject of a compensation
claim.
What were the problems
reported by Cull?
1 complaint: 14
organisations?
Revelations of inadequate cancer
treatment by a Northland gynaecologist led the Government to
commission a review of processes for reporting and investigating
adverse medical incidents. The ensuing report by Helen Cull QC
found that: "Currently, fourteen organisations can each undertake
an investigation into the same adverse medical event ... making the
complaints process confusing, cumbersome, difficult to access and
costly ... "[11].
The report found "unanimity in the view that the current system
provided a complaint cycle of systems whose processes wore down the
consumer and the professional. The multiplicity of processes and
the lengthy time which they involved, were costly financially,
personally and professionally."[12]
The figure of 14 organisations sounds dramatic, but in reality,
each of those organisations has a distinct role to play. For
example, in the case of an unexpected death in a hospital it is
appropriate for the hospital to review the care provided, for the
coroner to conduct an inquest, and for the family to have an
opportunity to complain to HDC if they feel that the patient's
rights were breached.
Problems Identified by Cull
Report
The Cull Report found that problems
of particular concern to consumers and complainants were extensive
time delays and difficulties accessing the appropriate complaint
mechanisms.[13]
The response of agencies to consumer complaints was uncoordinated
and lengthy. Unless patients had consulted a lawyer or had access
to a patient advocate, they were confused and ignorant about the
agencies they could contact about an adverse medical outcome. It
was a common theme during the Review that "to make a complaint
required determination and courage as the prospect of taking on the
medical professional, the hospital or the various agencies
processes was daunting".[14]
The lack of a centralised database,
containing relevant information about accepted claims or proven
complaints by a practitioner was thought to impede timely
identification of a practitioner whose practice is below acceptable
standards.[15]
At the time of the Cull Report there was little or no information
sharing or co-ordination among ACC, HDC and the Medical Council.
Helen Cull QC also identified reluctance among professionals to
report colleagues practising below an acceptable standard, and
expressed concern about the absence of mandatory reporting of
incompetence.
Three other problems identified by
the Cull Report relate to the sanctions available when a provider
has been found in breach of the Code. First, the Commissioner has
very limited power to enforce any recommendations made at the
conclusion of a breach opinion. Secondly, the Medical Council is
unable to suspend a practitioner over competence concerns until a
charge has been brought before the Medical Practitioners
Disciplinary Tribunal. Thirdly, ACC compensation is often
inadequate, and there are significant barriers to cost recovery.
The delay in receiving ACC entitlements while medical misadventure
claims penalises some patients as the real need has often passed by
the time compensation has been accepted.
The Cull Report was issued as a
discussion document in March 2001, and has prompted a number of
proposals for reform.
How will the proposed law
changes affect complainants and providers?
Robyn Stent's review of the Act
and the Code
The HDC Act requires the
Commissioner to undertake reviews of the Act and the Code, and to
make recommendations to the Minister of Health about any changes
that should be made.[16]
At the end of 1999 the inaugural Commissioner, Robyn Stent,
presented the first review of the Act and the Code to the Minister.
She noted that while a number of technical improvements to the Code
could be made, she did not consider that any were sufficiently
significant to warrant immediate amendment. In relation to the Act,
Ms Stent made a number of controversial recommendations including
making advocates employees of the Commissioner and abolishing the
position of Director of Proceedings.
Health Practitioners Competence
Assurance Bill
The Health Practitioners Competence
Assurance Bill (the Bill), due for introduction to Parliament in
May 2002, proposes to bring 13 groups of health professionals
within one umbrella. The Bill incorporates many of the Cull Report
recommendations, and if passed, will have a significant impact on
complaint mechanisms. Three reforms are of particular interest - C
the amendments to the HDC Act, the requirement for mandatory
reporting of incompetence, and the establishment of a single
disciplinary tribunal.
Greater flexibility for the
Commissioner
The Bill facilitates the appointment
of Deputy Commissioners, to whom the Commissioner will be able to
delegate the writing of reports and recommendations. With 538
investigation reports being signed out by the Commissioner
personally each year, a power to delegate is certainly needed. In
practice, it may be sensible for delegation to be confined to
discrete practice areas. For example, a Deputy Commissioner might
have delegated authority to handle all rest home and disability
service issues.
Other proposed changes to the Act
will enable the Commissioner to make preliminary inquiries about a
complaint and decide what action, if any, is appropriate. The
Commissioner will be entitled to take no action, if action is
'unnecessary or inappropriate'. The Commissioner will have the
option of referring the matter back to the provider to resolve, or
calling a pre-investigation mediation conference. Both of these
options will facilitate the resolution of complaints at the lowest
appropriate level. The Bill will allow complaints to be referred to
the ACC (if it appears that the consumer may be entitled to
compensation), to a Complaints Investigation Committee (if, for
example, a complaint relates to events that occurred pre-1996), or
other agencies as appropriate. The Bill places a legal obligation
on the person or authority to whom the Commissioner refers a
complaint, to report back on the outcome of the referral and the
action taken.
Other proposed reforms will ensure
better protection of patient safety. The Bill requires the
Commissioner to notify the appropriate health professional body,
the Director-General of Health or other appropriate person of
public safety concerns. The Bill will also enable the Commissioner
to report to the appropriate health professional body the name of
any health practitioner who fails implement any of the
Commissioner's recommendations. The Medical Council will be granted
additional powers to suspend a doctor for practising below standard
if there are "reasonable grounds" to believe the public is at risk.
Presently doctors may be suspended only for health problems. The
Medical Council would expect there to be checks on the process
including that the full Council make the initial decision, that the
doctor has the right to respond and that a tribunal hearing occur
within a strict time limit to make a formal order.[17]
Disciplinary Tribunal and Access
to Human Rights Review Tribunal
In line with Helen Cull QC's
recommendations, cabinet has agreed that there should be a single
Health Practitioners Disciplinary Tribunal. This would replace the
Medical Practitioners Disciplinary Tribunal and take over the
disciplinary role of the Nursing Council and other health
professional bodies. The proposed Tribunal would have a legal
chair, three lay people, and three peers of the practitioner. This
means that doctors would lose the majority they currently enjoy on
the Medical Practitioners Disciplinary Tribunal - a move that is
opposed by the New Zealand Medical Association. Disciplinary
charges will be reduced to just three: professional misconduct,
negligence and malpractice. Those found guilty will face sanctions
ranging from censure, a fine of up to $30,000, or being struck off
the professional register.
Another change relates to consumer's
access to the Human Rights Review Tribunal. The Bill will allow an
aggrieved person to bring proceedings before the Tribunal where the
Commissioner, having found a breach of the Code, has not referred
the matter to the Director of Proceedings, or where the Director of
Proceedings has decided not to take proceedings.
Raising concerns about
competence
The issue of mandatory reporting has
been the focus of much media attention. At present mandatory
reporting applies only to doctors with health problems. If the Bill
is passed, health professionals will be obliged report colleagues
with competence problems to the relevant professional board. The
Medical Practitioners Act 1995 (s 60(2)) defines competence has
having these two elements:
(1) 'the practitioner has the skill
and knowledge to practise medicine in accordance with his or her
registration'; and
(2) 'the practitioner's practice
meets the standard reasonably to be expected of a medical
practitioner who holds registration of the type held by the
practitioner".
At present, it is mandatory for
medical practitioners to notify the Medical Council if they believe
that a medical practitioner is not fit to practise medicine because
of some mental or physical condition.[18]
Perceived incompetence should be treated no differently.
The language of 'mandatory
reporting' is problematic and raises concerns that doctors will be
forced to 'dob each other in' for minor lapses. For example, Peter
Roberts of The Association of Salaried Medical Specialists has
claimed that "if you're constantly worried that somebody's going to
have to turn you in to the authorities for a mistake then you won't
ask for help". Similarly, John Adams, chair of the New Zealand
Medical Association has expressed concerns that "mandatory
reporting often achieves the opposite of what's wanted. It inhibits
the free collegial exchange of opinions, and works against peer
review by generating fear about the consequences of being free and
frank ... The NZMA supports a higher threshold - C that mandatory
reporting should only be applied when there is a serious threat to
public or patient safety."[19]
The real issue is that health
professionals have an ethical responsibility to raise concerns
about the competence of a colleague. Gillian Durham of the Ministry
of Health has said that the aim is to "tip the balance in the mind
of the health professional from their duty to their peer to their
duty to the public to ensure that the safety of the public is their
primary consideration." If one stands back and looks at fundamental
ethical principles of health care, the principle of 'Do no harm'
suggests that if one is aware that patients are at risk of harm by
the practice of a colleague then one would have a duty to do
something about it. It has nothing to do with 'blaming and
shaming'. It does mean 'naming', but only as part of a legally
protected and rehabilitative process. One doctor/grandfather of a
child who died of undiagnosed meningococcal septicaemia wrote to
the Commissioner: "in my 50 plus years of medicine I have seen many
times doctors cover for colleagues to the detriment of patients".
What we're talking about is a shift from covering up for a
colleague (because silence and not acting on one's concerns does
amount to complicity in a cover-up) to taking professional
privileges and responsibility seriously.
Amendments to the Accident
Compensation scheme
A number of recent changes to the
accident compensation scheme impact on the wider functioning of
complaint mechanisms. The Injury Prevention, Rehabilitation, and
Compensation Act 2001 requires the ACC to report any incident it
accepts as medical error to the relevant registration body and the
Commissioner. ACC must also report medical mishap trends to the
relevant registration body, the Commissioner, the Director General
of Health, or the employer of the registered health professional.
The Act also allows ACC to attribute error to the system, not just
an individual provider. This is an important step towards
acknowledging that most errors are attributable to the actions of
competent physicians practising in health care environments that
are poorly designed to prevent errors and mitigate their
consequences.[20]
Impact of reforms on
complainants, consumers, and providers
These reforms, in combination with
changes that have already been made within HDC, will benefit
complainants and consumers in a number of ways. In particular,
complaint handling will be simpler and speedier. Access to the
Human Rights Review Tribunal will be possible even where the
Commissioner has not referred a matter to the Director of
Proceedings. Improved information sharing, mandatory reporting, and
more effective sanctions will all contribute to better protection
of patient safety.
It is hoped that providers will
benefit from the reforms too, although not all health professionals
welcome the proposed changes. There will be less duplication of
investigations, and process reforms within HDC means that the
investigation process is fairer and more transparent. Professional
accountability will be increased, and there will be a majority of
lay people on the disciplinary tribunal. The overall impact of the
reforms should be increased support for a culture of learning,
where patients' rights are protected and health professionals are
supported.
One-stop-shop
The New Zealand complaints landscape
already has something of a one-stop-shop in the form of the HDC.
All health and disability services consumers can complain to HDC
and complaints to professional bodies already come to the
Commissioner's Office. We conduct one main investigation while
remaining in contact with other agencies that have an interest in
the matter. The proposed reforms will streamline processes for the
most serious complaints by establishing one disciplinary tribunal
for all registered health professionals. Expectations for a
one-stop-shop need to remain realistic. Different agencies will
continue to have important roles that should not be brought within
the HDC umbrella. ACC's role is compensation, not complaint
resolution, and it is appropriate that this role remain distinct
from the work of HDC. Complaints Investigation Committees will be
best placed to deal with certain types of concerns about health
professionals, including issues that arise from events pre-1996 or
non-patient related events (such as ACC fraud, criminal activity,
or inappropriate relationships with colleagues). Privacy of
information will remain domain of the Privacy Commissioner.
The Bottom Line
The bottom line is that the current
system needs reform to achieve fair, simple, speedy, and efficient
resolution of complaints. Proposed reforms, in combination with
changes that have already been made within HDC, will benefit both
providers and complainants.
--------------------------------------------------------------------------------
[1]
Cartwright S. The Report of the Cervical Cancer Inquiry (Auckland:
Government Printing Office 1988).
[2]
The Health and Disability Commissioner Act 1994, s 6.
[3]
The Code is set out in the Schedule to the Health and Disability
Commissioner (Code of Health and Disability Services Consumers'
Rights) Regulations 1996.
[6]
The Health and Disability Commissioner Act 1994, s 35(1).
[5]
The Health and Disability Commissioner Act 1994, s 2.
[4]
The Health and Disability Commissioner Act 1994, s 37.
[7]
The Health and Disability Commissioner Act 1994, s 36.
[8]
Nicholls v Health and Disability Commissioner [1997] NZAR 351 per
Tipping J
[9]
McDowell M. 2002 In the Course of Proceedings. Highlights March
2002: 3)
[10]
McDowell M. 2002. Medico-legal Forum (Wellington).
[11]
Cull H. Review of Processes concerning adverse medical events
(Wellington: Ministry of Health 2001) 14.
[12]
Cull H. Review of Processes concerning adverse medical events.
(Wellington: Ministry of Health 2001) 23.
[13]
Cull H. Review of Processes concerning adverse medical events.
(Wellington: Ministry of Health 2001) 20.
[14]
Cull H. Review of Processes concerning adverse medical events.
(Wellington: Ministry of Health 2001) 32.
[15]
Cull H. Review of Processes concerning adverse medical events.
(Wellington: Ministry of Health 2001) 20.
[16]
The Health and Disability Commissioner Act 1994, ss 18, 21.
[17]
Ineson S. 2001. New Act for doctors planned for next year. NZ
Doctor. 7 November 2001: 43.
[18]
Medical Practitioners Act 1995, s 76.
[19]
Stuart J. Dob-a-doc rule moves closer. New Zealand GP. 1 May
2002.
[20]
Kohn L, Corrigan J, Donaldson M (eds). To Err is Human. (Washington
DC: Institute of Medicine 1999)