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Health and Disability Commissioner - A toothless tiger?

Paper delivered to 9th Annual Medico-Legal Conference
21 February 2001 Wellington

Ron Paterson
Health and Disability Commissioner

Introduction

The role of the Health and Disability Commissioner is to promote and protect the rights of consumers and to facilitate fair, simple, speedy and efficient resolution of complaints. Since taking office in March 2000 I have become aware that the Commissioner's Office is perceived by some as a "toothless tiger". This paper examines the basis for the criticism, explains the nature of the Commissioner's powers and sanctions, discusses some recent procedural changes and mentions two proposed reforms.

Basis for "toothless tiger" criticism

What is the basis for the "toothless tiger" criticism? It seems that several factors may have contributed to this perception.

First, there has been criticism of the long delays in concluding investigations, with a sense that the complaints process is "bogged down" with relatively minor matters.

Secondly, there have been some concerns about the procedural fairness of aspects of the investigation process. Parties will often be disappointed with an unfavourable outcome. But it is essential the parties believe the process has been fair. That was not the situation I found on appointment. A number of complainants had alleged unfairness in relation to findings of "no breach of the Code" or a decision to take "no further action", and some providers have challenged the fairness of a breach finding. Such perceptions damage the credibility of the Office.

Thirdly, the usual outcome of a finding of a breach of the Code is a series of recommendations to the provider, yet the Health and Disability Commissioner Act 1994 does not provide strong mechanisms for enforcement. Very few cases are referred for disciplinary proceedings. In the year to June 2000 a total of 21 cases were referred to the Director of Proceedings. Of these, 12 went before professional disciplinary tribunals or the Complaints Review Tribunal (CRT), resulting in 9 successful prosecutions. In 2000, the Medical Practitioners Disciplinary Tribunal heard approximately 10 cases, compared with approximately 80 heard by the Medical Practitioners Disciplinary Committee in 1995. Wendy Brandon, Chair of the Medical Practitioners Disciplinary Tribunal, has been critical of the low number of cases being brought by the Director of Proceedings to the Tribunal, and suggested that the Commissioner's gatekeeper role is leading to reduced transparency and accountability.

Bailing the "leaky boat"

Criticism about long delays in concluding investigations has certainly been justified in many cases. At times it feels as though we are bailing a leaky boat, with my investigation staff continually struggling to close old files faster than new ones are opened. To give an idea of scale of the influx, 683 new complaints were received from June to December 2000, and 638 complaints closed in that time. There was an 81% increase in complaints in November 2000 compared with November 1999.

Why are we seeing a marked increase in the number of complaints? Possible reasons include the publicity surrounding events such as the Gisborne cervical cancer inquiry, re-use of anaesthetic syringes in Whangarei and Gisborne, wrongly cleaned endoscopes in Christchurch and Rotorua, and the case of Colleen Poutsma in Northland. Media coverage of these events caused members of the public to reflect on their own health experiences and in some cases to take action in the form of a complaint. I do not believe that the quality of health care is deteriorating, although we still see some unacceptable lapses. But many situations, including the wrongly cleaned endoscopes, involve a statistically tiny degree of risk that would have been regarded as perfectly acceptable 10 years ago. It is clear that consumer expectations have risen. But there also needs to be a sense of proportion in the media reporting of adverse events.

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. One of my core commitments as Commissioner has been to ensure the "fair, simple, speedy and efficient resolution of complaints" as required by the Act. In particular I aim to have all remaining cases from 1997 and 1998 closed by 30 June 2001.

Improved Procedural Fairness

I have made several changes in an effort to improve procedural fairness in the HDC complaints process. More early discussions now take place with complainants to clarify the issues involved in the complaint. The provider is notified of the scope of the investigation at an early stage and provided with a copy of the complaint. Clinical advisors are also consulted at an earlier stage.

In the past, the identity of expert advisors was kept anonymous. In order to provide greater transparency and accountability, I am introducing a system where Colleges nominate names of suitable advisors, those names are published within the profession and individual advisors are identified in particular reports. Another change that has already been implemented is the reproduction of expert advice in full in the body of the report.

In order to address some of the concerns of complainants about HDC process, where there has been a finding of no breach, or a decision to take no further action, the complainant is now shown a provisional copy of a "no breach" opinion, and given the opportunity to respond. I do not believe this is legally required, but it is good administrative practice and leads to fewer complaints to the Ombudsman seeking a review of HDC process.

I am confident that these procedural changes will result in more robust investigations and opinions. It is hoped that, as a consequence, parties will be more confident in the findings and more willing to comply with the recommendations.

Formal sanctions

The third main factor contributing to the "toothless tiger" perception has been concern that so many complaints result in a finding of "no breach", a decision to take "no further action" or a series of recommendations.

My first response is that it is appropriate, and consistent with the statutory framework, for complaints to be resolved at the lowest appropriate level. My role is to promote and protect the rights of consumers, and this can often best be achieved through the use of recommendations rather than formal sanctions. While I act as gatekeeper to formal disciplinary processes, it is not my role to punish providers. Providers usually co-operate with the process of investigation, and generally implement recommendations adequately and appropriately. In this situation, little more may be achieved by pursuing more formal sanctions.

The second point is that there is a need to balance the availability of effective sanctions against the risk of making health providers feel that they are under siege. It is common to hear suggestions that New Zealand doctors increasingly face medico-legal risks similar to those of their foreign counterparts. Some doctors already feel under siege because of changing consumer expectations and increasing emphasis on accountability. On occasion the first time a doctor learns of a complaint is in the local newspaper, which has been approached by the complainant, before my Office has even had an opportunity to notify the parties. An examination of the facts reveals that fears about current medico-legal risks are exaggerated. Negligence claims are rare, and even if such claims are successful, damages are small compared with other countries. Nevertheless, perception has an important impact on reality, and unless this medico-legal myth is dispelled, doctors will move towards the practice of defensive medicine. Thus, it is important that the Commissioner's Office be seen to have effective sanctions available and not as a "toothless tiger", without over-inflating fears about the risks of practising medicine in New Zealand.

Once an investigation has revealed a breach of the Code, a hierarchy of sanctions is available. The Commissioner may make recommendations to providers, report to the Minister of Health or other appropriate persons, lay complaints with health disciplinary bodies, or refer the matter to the Director of Proceedings. The Commissioner is also empowered to make public statements, which may include naming the parties. Each of these sanctions will be discussed in a little more detail, but first it is helpful to get a sense of the numbers involved. In the year 2000, out of thousands of GP consultations, 293 complaints were made to the Commissioner's Office, 46 GPs were found to have breached the Code and 8 were subject to professional disciplinary proceedings.

Recommendations

The most commonly used power is that of making recommendations. Recommendations vary from written apologies, to a suggested review of an area of practice, to the involvement of a professional College. Often, more than one action is recommended. Under section 46, if the Commissioner's recommendations are not been appropriately or adequately actioned the Commissioner shall inform the complainant and make such comments as he thinks fit, and may report the matter to the Minister of Health. The ability to make comments includes the power to make public statements, although as explained below this is rarely done. Thus, the decision by the Commissioner to refer a matter to the DP is a crucial one for the professional involved and the complainant.

Report to appropriate persons

The second level of sanctions involves forwarding to the final report to any appropriate persons, so that they may take any further action they deem appropriate. Breach reports are commonly sent to the Minister of Health (section 45(c)). Reports may also be sent to any health professional body or other appropriate body (section 45(b)). For example, cases involving rest homes are commonly reported to the licensing division of the Ministry of Health. Cases involving health professionals who are members of a professional College are usually sent to that College.

Recommendations and Report - Case Study

A GP prescribed a consumer a third generation oral contraceptive pill for her painful periods. During the consultation, the consumer was not informed of the risk of blood clotting associated with oral contraceptive pills. Since 1996, the Ministry of Health has advised doctors to disclose this risk, and gain informed consent before prescribing an oral contraceptive pill.

Following the consultation, a friend of the consumer told her of the risk of blood clots associated with Marvelon, the contraceptive she had been prescribed. The consumer advised that once she became aware of this risk, she no longer wanted to continue with the medication.

The GP was found to have breached Right 4 (the right to services of an appropriate standard), Right 6 (the right to be fully informed), and Right 7 (the right to make an informed choice and give informed consent). I recommended that the GP apologise to the consumer in writing and review his practice in relation to prescribing oral contraceptives. A copy of the opinion was sent to the Medical Council, the Ministry of Health and the Royal New Zealand College of General Practitioners (99HDC03994).

Specific Recommendation to Professional Body or Statutory Registration Body

The third level of sanctions involves the Commissioner making a specific recommendation to a professional body (such as a College) or to the relevant statutory registration body. For example, the Commissioner may recommend that the Medical Council review the competence of a medical practitioner to practise medicine.

The statutory registration bodies, such as the Medical Council, can take no disciplinary action until the Commissioner has dealt with the matter and decided to take no further action. Only at this point can the professional body take up the matter itself. (It is only disciplinary action that is suspended - for example the Medical Council may still consider a member's fitness or competence to practice.)

Referral to Director of Proceedings

If a matter is deemed to be sufficiently serious, it will be referred to the Director of Proceedings (DP). Once a matter has been referred to the DP, she may do a number of things. She may decide to institute disciplinary proceedings (section 49(1)(a)(i)). This power overlaps with the power of the Commissioner to make a complaint to a disciplinary body directly (section 45(d)). The DP may take proceedings or provide representation to any party before any Court or tribunal.

Sending a complaint to the Director of Proceedings also opens up the avenue of access to the Complaints Review Tribunal (CRT). The Commissioner has no power to refer a matter directly to the CRT. Conversely, the DP has no power to initiate proceedings before the CRT unless the Commissioner has referred the complaint to the DP. Complainants have no direct access to the CRT. However, once the matter has been referred to the DP, the DP may agree to the aggrieved person bringing their own proceedings before the CRT (section 51).

In this sense, the Commissioner's complaint investigation jurisdiction is at the base of what can be (in serious cases at least) a rather large pyramid of adjudication. It is the foundation upon which "further action" is taken (to use the language of s 14(1)(f)). At higher adversarial levels, the full rigour of court-like processes comes into play, and the initial investigation process must lay a sound evidential foundation upon which the DP and disciplinary bodies can rely.

DP referral - case study

In April 1998, Mrs Colleen Poutsma complained to the Commissioner about services provided by Dr Graham Parry, after she was referred to him for investigation of gynaecological symptoms.

The Commissioner's investigation found that Dr Parry's initial clinical examination of Mrs Poutsma was inadequate, that he failed to investigate her symptoms appropriately, did not take appropriate action when her smear results were abnormal, and did not refer her to National Women's Hospital early enough. Dr Parry was found to have breached Right 4 of the Code by failing to provide services of an appropriate standard to Mrs Poutsma.

The Medical Council was asked to undertake an immediate review of Dr Parry's competence. The matter was referred to the Director of Proceedings who successfully prosecuted Dr Parry before the Medical Practitioners Disciplinary Tribunal. (The findings of disgraceful conduct and penalty of de-registration are currently under appeal.)

Public statement

Finally, the Commissioner is empowered to make public statements on general matters related to consumers' rights. The former Commissioner, Robyn Stent, believed that the power to make public statements was an important power and one she was "not afraid to use". In her speech to the 7th Annual Medico-Legal Conference, Ms Stent commented "I am becoming convinced that I should begin to publish the full facts of every breach case, naming the provider, so that the public and the profession can decide for themselves whether my decision was fair".

I prefer to take a more cautious approach to naming parties. I believe that the Commissioner effectively acts as a gatekeeper to disciplinary proceedings in the case of registered health providers, and that it is more appropriate for these bodies to make the decision to name providers. However, in the case of unregistered or institutional health providers, it might be necessary for to "blow the whistle" and publicise concerns to adequately protect vulnerable consumers. This is not a step that is taken lightly, but is a form of sanction that has been used with good effect.

Obviously, in some cases, one of the parties to the complaint will have already placed the details of the case in the public arena, in which case I may choose to publish my decision in an attempt to ensure that the actual outcome of the case is accurately reported. This occurred in the recent case involving the emergency services provided to Mr Tommy Whittaker by Taranaki Healthcare, which received extensive media coverage before I released my opinion.

Public Statement - Case Study

Mr Whittaker was admitted to Taranaki Base Hospital Accident and Emergency following a 15-meter fall from a building while intoxicated. The sole doctor covering the emergency department was a first year house surgeon, unfamiliar with the management of major trauma. Mr Whittaker subsequently died due to a brain haemorrhage that went undiscovered until it was too late.

Expert advice suggested that the house surgeon had acted competently and appropriately for a doctor at her level of training. The nurse responsible for Mr Whittaker's care, the on-call surgical registrar on call, and Taranaki Healthcare were found in breach of the Code. The case raised important issues about the provision of emergency services in New Zealand, particularly in rural hospitals.

Several recommendations were made including the recommendation that Taranaki Base Hospital review its policies and protocols on the management of head injuries. A copy of the opinion was sent to several organisations including the Medical Council, the Nursing Council, the Australasian College of Emergency Medicine, and all Emergency Departments in New Zealand, for educational purposes (98HDC13685).

Proposed areas for reform

Legislative reform is required to better protect the rights of consumers is required in two key areas.

The first relates to access by consumers to the Complaints Review Tribunal. There is no good reason why access to the Tribunal should be more restrictive for health and disability consumers than for privacy or human rights matters. It seems to be an accident of drafting that the Act requires referral of a matter to the DP as a trigger for any claim by an individual consumer. 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.

The second area relates to the current inability of the Commissioner to make conditional referrals. In other words, the Commissioner may not indicate in a report that if the outcome of recommendations is not satisfactory, then some other action, such as referral to the DP will occur. In practice, this creates the potential for overkill, by encouraging the Commissioner to refer cases to the DP in situations where this would not be necessary if he knew at that point in time that the recommendations would be satisfactorily implemented. This situation is not ideal, and needs to be addressed by statutory amendment.

Conclusion

The Health and Disability Commissioner statutory framework is not perfect, but I believe it is largely sound and effective as a piece of consumer protection legislation.

Over the past year, I have made a priority of closing old files, and addressing concerns about the slowness of the investigation process. I have also taken several steps to enhance the procedural fairness, and overall robustness of the investigation process. As a result, parties to the complaint are more likely to have confidence in the final report, and to comply with any recommendations. While formal sanctions and enforcement powers are rarely required, they are available if needed, and belie the suggestion the Commissioner is a "toothless tiger".