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Health Professionals - Institutional structures, regulation and complaints

Auckland District Law Society  Health Law Seminar
October 2002

Ron Paterson
Health and Disability Commissioner

Introduction

Miss A, a teacher, consulted an after-hours GP complaining of abdominal pain and bloating. The after-hours GP took a history, examined Miss A, diagnosed indigestion, and prescribed an antacid.

So far, this is a pretty simple scenario. But if you stop to think about the institutional structures and regulatory mechanisms that underpin even a straightforward GP consultation like this, things become a little more complex. Throw in the complication of medical error, and suddenly the doctor - patient relationship becomes one small piece of a much bigger picture.

This paper provides a broad overview of the institutional structures, regulatory mechanisms, and complaints processes set up to support health professionals and protect patients in New Zealand.

Institutional structures

District Health Board model

First, consider how Miss A's consultation and prescription were funded. While many health care and disability services in New Zealand are provided by the not-for-profit sector, most health professionals are paid for their services.

The Ministry of Health has overall responsibility for the provision of publicly funded health care in New Zealand. The Ministry has national contracts with hospitals and public health providers for some high cost, low volume services including national screening services. Most health care is funded through 21 District Health Boards, which have contracts with individual primary care providers (such as pharmacies), community services (such as Plunket), and primary health organisations. Inpatient public hospital care and maternity care are fully funded. Private hospitals provide individuals with a choice of specialist and quicker access to elective surgery. Primary care is mostly funded on a fee-for-service basis and delivered by private businesses. Most GPs charge co-payments of around $45 for adult patients without a community services card.

In the 1980s, hospital and community health care services were organised through 14 Area Health Boards. The National Government elected in 1990 moved towards a model of competition with the establishment of a purchaser - provider split. In 1993, four Regional Health Authorities were set up to purchase health services, and hospitals were renamed Crown Health Enterprises. Co-payments for hospital services were introduced, but soon abolished following widespread protest. Following the 1996 election, the Regional Health Authorities were merged into a single purchaser, the Health Funding Authority. Crown Health Enterprises were renamed Hospital and Health Services and given not-for-profit status. The current Labour Government has undertaken yet another round of reforms, merging the Health Funding Authority with the Ministry of Health and devolving purchasing to 21 elected District Health Boards.^[i]

In the light of all this change, it is hardly surprising that health professionals have become somewhat cynical about the ability of politicians to change our health system for the better.

Health care providers

Next, consider the people involved with Miss A's first consultation: the GP, the practice nurse, and the pharmacist. How can we be sure that these people were appropriately qualified to do their jobs?

Broadly speaking, health care providers in New Zealand can be divided into three main groups: registered health care providers (eg, doctors, nurses, midwives, dentists), unregistered health care providers (eg, homeopaths, acupuncturists, social workers), and health care organisations (eg, GP practices, public and private hospitals).

Regulation of health professionals

In New Zealand, unregistered health professionals operate in a bit of a legislative vacuum. Anyone can put a sign on his or her door claiming to be a homeopath, acupuncturist, counsellor or social worker.

Registered health professionals in New Zealand are largely self-regulated, although there is a trend towards greater regulatory oversight to ensure that health professionals maintain their level of competence and work in a suitable environment. Much of the legislation that impacts on health professionals is antiquated, and due for an overhaul. For example, the Physiotherapy Act dates back to 1949, and the Dieticians Act was passed in 1950.

Medical Practitioners Act 1995

The most modern piece of legislation regulating health professionals is the Medical Practitioners Act 1995. As will be discussed later, this Act has been used as a template in developing a new Bill that will bring most health professionals under one regulatory umbrella.

The purpose of the Medical Practitioners Act is "to protect the health and safety of the public".^[ii] Ensuring that all registered medical practitioners are competent to practise medicine is arguably the most important new provision in the Act. Medical practitioners on the general register must be under the oversight of a vocationally registered medical practitioner who will provide support and guidance. Vocationally registered doctors (fully qualified specialists) must regularly meet the requirements of a recertification programme.

The Act also gives the Medical Council the power to review the competence of a medical practitioner at any time. Competence reviews are confidential and rehabilitative, not punitive. Part VI of the Medical Practitioners Act protects the confidentiality of declared quality assurance activities.

Other important legislation

Many other Acts and Regulations have an impact on health professionals. All health providers should be familiar with the 12 privacy principles in the Privacy Act 1993, recast for the health sector as the 12 rules in the Health Information Privacy Code.

The Medicines Act 1981 and the Misuse of Drugs Act 1975 regulate prescribing of prescription medicines. Medsafe (part of the Ministry of Health) is responsible for enforcing the associated regulations. The Minister of Health may, on the recommendation of the Medical Council, prohibit a doctor from prescribing certain drugs.

The Human Tissue Act 1964 includes provisions relating to the removal of human tissue for therapeutic purposes and post-mortem examinations. The Health Act 1956 is primarily focused on the improvement, protection and promotion of public health. For example, the Health Act imposes a responsibility on medical practitioners to report certain notifiable diseases.

In some situations, section 151 of the Crimes Act 1961 places a legal duty of care on health professionals to provide the necessaries of life. Section 155 of the Act provides that everyone who administers surgical or medical treatment is under a legal duty to use reasonable knowledge, skill, and care in doing any such act, and is criminally responsible for the consequences of omitting without lawful excuse to discharge that duty.

Complaints

Miss A's story (continued)

Miss A's after-hours GP was a careful and thorough doctor, so as part of the physical examination he carried out a rectal examination. He thought he could feel a mass high up and wrote to Miss A's usual GP advising him of the finding so that it could be followed up. Miss A's GP received the letter, but did not read the after-hours GP's comments. Over the next two months, Miss A consulted Dr B on seven different occasions (four times in person and three times by telephone). She complained of tiredness, poor sleep, abdominal pain, back pain, shoulder pain and bloating. Dr B diagnosed her with depression and irritable bowel syndrome. Miss A became increasingly despondent. She believed her family thought she was making up her symptoms, and felt as though she was getting nowhere with Dr B. Eventually her sister persuaded her to seek a second opinion. Miss A arranged an appointment with a private surgeon, who immediately diagnosed her with advanced pancreatic and ovarian cancer. Miss A told her sister that she felt almost relieved when she was told that she had cancer, because she felt that finally someone believed her and was taking her symptoms seriously. Miss A died two months later. An expert advisor advised that while earlier diagnosis was unlikely to have changed the outcome, it would have given Miss A more time to come to terms with her diagnosis, and enable health professionals to provide her with better palliative care.

This is a grim scenario, but adverse events are not unusual in health care. The recent New Zealand Quality of Health Care Study reported an overall rate of 12.9% of adverse events associated with admissions to New Zealand public hospitals, roughly one-third of which were classified as highly preventable.^[iii]

'No fault' compensation

Medical malpractice litigation has effectively been barred in New Zealand since 1974.^[iv] The Accident Compensation Corporation (ACC) provides no-fault, state-funded rehabilitation and compensation for victims of 'medical misadventure', including medical error (injury caused by a health professional's negligence) and medical mishap (injury caused by a rare and severe complication of treatment by a health professional).^[v]

Recent changes to the accident compensation scheme mean that if a claim is accepted as medical error, ACC is required to report it to the relevant registration body, in this case the Medical Council. Under the Injury Prevention, Rehabilitation, and Compensation Act 2001, ACC also has a discretion to report medical mishap. The Act 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.^[vi]

Purpose of the Health and Disability Commissioner

The purpose of the Health and Disability Commissioner Act 1994 (HDC 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.^[vii] It is the function of the Health and Disability Commissioner (the Commissioner), an independent statutory ombudsman, to investigate any action of a health care provider where that action is, or appears to be, in breach of the Code of Health and Disability Services Consumers' Rights.^[viii]

Code of 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 or disability service, whether or not any charge is made for those services.^[ix]

Steady stream of complaints

The Commissioner has very limited discretion to take no action on trivial or vexatious complaints, or complaints not made in good faith.^[x] Almost every complaint alleging substandard health care or disability services provided after 1 July 1996 must be investigated or referred to advocacy.^[xi] In the year ended 30 June 2002 the Commissioner received 1211 complaints, a 13% reduction compared with the record high of 1397 complaints received the previous year. Typically, investigations take 9 to 12 months to complete, but a complex investigation involving a large number of providers in a hospital setting may take one to two years.

Why do people complain and what are they looking for?

Most people who are the victim of an adverse event feel angry and disappointed that trusted health professionals have let them down. Many people's faith in health professionals is badly shaken. Most often, patients want an explanation and an apology. Some want the health professional to be held accountable before his or her peers, and almost everyone wants to make sure that the same thing doesn't happen to someone else. A small minority want someone to blame and will not be satisfied until heads roll.

Resolution strategies

The statutory framework supports resolution of complaints at the lowest appropriate level. 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.

Following Miss A's death her sister complained to the Health and Disability Commissioner regarding the medical services provided to Miss A by Dr B. An investigation was carried out, and the Commissioner sought independent expert advice from two general practitioners nominated by the Royal New Zealand College of General Practitioners.

Few complaints end in discipline

Referrals to the Director of Proceedings are uncommon. In the year ended 30 June 2002, the Commissioner received 1211 complaints, closed 234 investigations and issued 90 opinions finding a breach of the Code. The Director of Proceedings was involved in 24 disciplinary hearings. 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".^[xii]

Gatekeeper role of the Commissioner

Under the current complaints scheme, the Commissioner plays an important gatekeeper role. 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.

Medical Council

The Medical Council deals with matters relating to health impaired doctors, events that occurred before 1 July 1996, and matters where the Commissioner has decided to take no further action. Under the HDC Act, 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 Medical Council itself no longer hears disciplinary charges or appeals. Instead a Complaints Assessment Committee or the Director of Proceedings may lay a charge before the Medical Practitioners Disciplinary Tribunal. If there is a need to protect the health or safety of members of the public, the Tribunal may recommend that the registration of the doctor should be suspended or conditions imposed pending determination of the charge. Tribunal hearings are normally held in public.^[xiii]

Human Rights Review Tribunal

The Human Rights Review Tribunal may award damages in respect of: pecuniary loss suffered as a result of the breach; loss of any benefit which the person might reasonably have been expected to obtain but for the breach; humiliation, loss of dignity, and injury to the feelings of the aggrieved person; and any action of the defendant that was in flagrant disregard of the rights of the aggrieved person.^[xiv]

Looking to the future

Health and Disability Services (Safety) Act 2001

The Health and Disability Services (Safety) Act 2001 repeals current licensing regimes for hospitals and rest homes, and provides for health care providers to be audited against approved standards. The Act also gives the Ministry of Health extensive powers to, for example, enter and inspect premises to determine whether health care services are being provided in a safe and satisfactory manner.^[xv]

Health Practitioners Competence Assurance Bill

The Health Practitioners Competence Assurance Bill (the Bill) proposes to bring 13 groups of health professionals within one umbrella. If passed, the Bill will have a significant impact on complaint mechanisms. Three reforms are of particular interest - the promise of more flexible complaints resolution processes, the establishment of a single disciplinary tribunal, and the rationalisation of access to the Human Rights Review Tribunal.

Greater flexibility for 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 234 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 cases.

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 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 to 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.

One 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 current majority on the Medical Practitioners Disciplinary Tribunal - a move that is opposed by the New Zealand Medical Association. There will be only one disciplinary offence, professional misconduct, which will include malpractice and negligence. Those found guilty will face sanctions ranging from censure, a fine of up to $30,000, to being struck off the professional register.

Access to Human Rights Review Tribunal

Another change relates to consumers' 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.

Conclusion

Maintaining a balance

Every country requires effective mechanisms for dealing with the few individual clinicians whose actions display incompetence or malice. Such individuals must be held to account for their actions. At the same time, we need to accept that some error is inherent in all human activity and focus our efforts on developing health care systems that limit the incidence of errors and mitigate their consequences. The aim should not be to replace a blaming culture with a blameless one, but rather to have a just complaints resolution system and a culture of learning, where the root causes of error are analysed and addressed.

The institutional structures, regulatory mechanisms and complaints processes described above share some important goals - to improve the quality of health care in New Zealand, promote the public interest, and protect patient safety. Achieving these goals requires a careful balance between the "watchdog" role of external regulatory agencies and self-regulation by health professions to promote a culture of learning that supports health professionals to learn from adverse events.

New Zealand already has a head start on the rest of the world with our no-fault compensation scheme, supportive regulatory environment, and low level complaints resolution. The Health Practitioners Competence Assurance Bill should further improve our ability to achieve this balance, with its promise of more flexible complaints resolution processes.

And what about Dr B?

The Commissioner's two independent expert advisors advised that Dr B did not adequately investigate Miss A's symptoms during any of her four appointments. He did not revisit his initial diagnoses when her symptoms continued and worsened, and failed to make a specialist referral. Dr B was found to have breached Right 4(1) of the Code of Health and Disability Services Consumers' Rights by failing to provide Miss A with services of an appropriate standard. The Commissioner sent a copy of his opinion to the Medical Council, with a recommendation that the Medical Council review the competence of Dr B to practise medicine. The matter was also referred to the Director of Proceedings for consideration of disciplinary action. An anonymised copy of the opinion was sent to the Royal New Zealand College of General Practitioners and placed on the Commissioner's website, www.hdc.org.nz, for educational purposes.[xvi]

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^[i] Scott, C, Public and Private Roles in Health Care Systems (Open University Press, Buckingham, 2001).

^[ii] Medical Practitioners Act 1995, s 3.

^[iii] Davis, P et al, Adverse Events in New Zealand Public Hospitals: Principal Findings from a National Survey (Ministry of Health, Wellington, 2000).

^[iv] The Injury Prevention, Rehabilitation, and Compensation Act 2001, s 317.

^[v] The Injury Prevention, Rehabilitation, and Compensation Act 2001, ss 69 and 32 - 34.

^[vi] Kohn, L, Corrigan, J, and Donaldson, M (eds), To Err is Human (Institute of Medicine, Washington DC, 1999).

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

^[viii] The Health and Disability Commissioner Act 1994, s 35(1).

^[ix] The Health and Disability Commissioner Act 1994, s 2.

^[x] The Health and Disability Commissioner Act 1994, s 37.

^[xi] The Health and Disability Commissioner Act 1994 , s 36.

^[xii] McDowell, M, Medico-legal Forum (Wellington, 2002).

^[xiii] St George, I (ed), Cole's Medical Practice in New Zealand (Medical Council of New Zealand, 2001).

^[xiv] Health and Disability Commissioner Act 1994, s 57.

^[xv] Health and Disability Services (Safety) Act 2001, s 40, s 42.

^[xvi] www.hdc.org.nz (Opinions/99HDC09125).