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Independent Nurse Practioners' Conference

Presentation to the Independent Nurse Practioners' Conference

Friday 29 August 1997

1. The Health and Disability Commissioner Act 1994

On 1 July 1996, the Code of Health and Disability Services Consumers' Rights came into force. The basis of the Code of Rights is the Health and Disability Commissioner Act 1994. The Act defines the boundaries of the Code and the operation of the Commissioner's office. It is a key element in the new environment of consumer-focused and consumer-accountable health and disability services, and was supported by, and owes its origins to, work done by both major political parties.

Purpose

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 fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights (s 6).

This objective is achieved through the implementation of the Code of Rights, through education of providers and consumers, and through the establishment of a complaints process to ensure enforcement of those rights.

Anyone can make a complaint alleging that a provider has breached the Code and the Commissioner may decide to undertake an investigation on the basis of that complaint. The Office is able to receive complaints from consumers, family members, friends, and staff at health care or disability services facilities, including nurses. Provision for third party complaints is essential to the Act's purpose of promoting and protecting the rights of consumers, especially those who are unable to complain because of disability or illness. The Health and Disability Commissioner Act also enables the Commissioner to investigate on her own initiative.

From 1 July 1996, all complaints received by the Nursing Council must be referred to the Health and Disability Commissioner, and all disciplinary action by the Council suspended while the matter is being dealt with under the Health and Disability Commissioner Act.

Where the jurisdiction of the Health and Disability Commissioner is more appropriate, other personal rights agencies such as the Privacy Commissioner may refer complaints to the Commissioner. Furthermore, the Regional Licensing Office of the Ministry of Health also refers to the Commissioner all complaints which they receive about the quality of services provided in rest homes.

2. The Code of Health and Disability Services Consumers' Rights

The Code takes the form of regulation under the Act. The rights contained in the Code therefore have the force of law. The development of a Draft Code was the first task of the Health and Disability Commissioner, and was completed in October 1995 after nine months of consultation and drafting. The final Code of Health and Disability Services Consumers' Rights became law in May 1996 and took effect from 1 July 1996.
There are 10 rights defined in the Code. They are:

1. the right to respect
2. the right to fair treatment
3. the right to dignity and independence
4. the right to proper standards
5. the right to effective communication
6. the right to be fully informed
7. the right to make informed choices and give informed consent
8. the right to support
9. rights when taking part in teaching and research
10. the right to complain.

The obligation to comply with the Code applies to all providers of health and disability services.

3. Responsibility for Compliance with the Code

To ensure that consumers receive services of an appropriate standard, the Code places responsibility for compliance on a range of providers.

Responsibility of the nurse as a health provider

The Health and Disability Commissioner Act defines "health provider" to include:

• A nurse, which for the purposes of this Act means any person for the time being registered or enrolled as a nurse (whether as a comprehensive nurse, or a general nurse, or otherwise), or as a midwife, under the Nurses Act 1977, including a holder of a provisional certificate of registration or enrolment, and a holder of a certificate of temporary registration or a certificate of temporary enrolment, under that Act:
• A nurse or midwife is bound by the Code whenever he or she provides a health or disability service to a consumer. This includes any nursing services. All reasonable steps must be taken to ensure that the service provided complies with the Code of Rights.

Responsibility of the nurse to co-operate with other providers

Often a range of providers are involved in the provision of a health service to a consumer. The Code of Rights specifically requires providers to co-operate with each other to ensure quality and continuity of services. For example, this would involve the transfer of information, careful recording of the consumer's condition and treatment, timely referral of care where necessary, and appropriate procedures for handing over responsibility for a consumer. I have observed situations where professional interfaces have been compromised due to personal feelings or industry politics. In these situations the consumer's care is jeopardised.

Responsibility of the employing authority for the actions of the nurse

The Health and Disability Commissioner Act also makes employers responsible for the actions of their employees. Although the employer may not personally have been involved in the breach of the Code, anything done or omitted by the employee shall be treated as done or omitted by the employing authority, whether it occurred with or without the employing authority's knowledge or approval. However, the employing authority shall have a defence to potential liability under the Code if it can show that reasonable steps were taken to prevent the employee from acting in breach of the Code. This potential for liability is an encouragement for employers to ensure that adequate measures such as training, supervision, and monitoring of staff are implemented effectively.

Direct responsibility of the employing authority for adequate systems

In some situations, the responsibility for ensuring that consumers receive services that comply with the Code lies primarily with the institution. This will be the case where the cause of the breach was the lack of adequate systems for the delivery of services within the institution. For example, responsibility for the admission procedure, staffing numbers, overall cleanliness of the facilities, and drug storage provisions. These responsibilities will often fall more appropriately on the institution itself rather than the individual health or disability service providers involved in the care of the consumer.

Responsibility of the nurse for adequate systems

However, the institution's responsibility does not completely absolve individual providers of Code obligations in relation to systems issues. All providers have an obligation to ensure that consumers are safe and therefore, must understand that systems issues need to be identified and addressed. Health providers require further training and guidance in recognising that they have a responsibility in this area. If a nurse or midwife becomes aware of any public risk, whether it involves another health professional or an organisation, they have an ethical obligation to raise the matter in the appropriate manner. This may include making a complaint to the Health and Disability Commissioner's office. Nurses also have an obligation to take all reasonable steps to comply with the Code within the systems that exist.

4. Responding to a Complaint from a Consumer

People who can receive complaints from consumers

The Code of Rights gives consumers the right to complain to the individual provider, any person authorised to receive complaints, or any other appropriate person, for example the Health and Disability Commissioner. On receiving a complaint all providers must facilitate the fair, simple, speedy and efficient resolution of the complaint. This must be done in a manner that complies with the Code of Rights and, in particular, the complaints process must involve effective communication and demonstrate respect for the consumer.

Complaints procedures

Providers who are employers or who are self employed must ensure that they operate a complaints procedure that complies with Right 10 of the Code. This right establishes some minimum requirements for complaints procedures, and in particular specifies timeframes in which complaints must be acknowledged and considered. It also provides for the provision of relevant information to the consumer and the careful documentation of the complaints process. If a provider is an employee of a provider, they do not need to establish their own complaint process, but must enable the consumer to utilise the complaint process established by the employing authority and/or the Health and Disability Commissioner.

Low level resolution between consumer and provider

Often the quickest and most satisfactory way of dealing with grievances is for the consumer to deal direct with the provider. My approach, therefore, is to encourage complaints to be addressed directly between the parties concerned where this is appropriate. This gives the opportunity for both provider and consumer to discuss the matter and hopefully come to a quick resolution of the problem. It also enables both parties to understand the issues which led to the complaint and to assist in ensuring these are not repeated. Support persons can often be useful in this process, as can the assistance of independent advocates contracted by the Director of Advocacy.

At present there are a total of 58 advocates, some of them part-time, operating nation-wide under 10 regionally based advocacy service contracts. The role of advocates is fundamental to the low level resolution aim of the Act. Advocates are not impartial, nor are they mediators. Their role is to empower and assist the consumer to resolve the matter without the need for further intervention. In carrying out this and other functions, advocacy services operate independently from the Commissioner, providers and purchasers, and are accountable to the Director of Advocacy, an independent statutory officer appointed under the Act.

Public interest and professional standards

The Health and Disability Commissioner Act has the purpose of promoting and protecting the rights and safety of all health and disability consumers. The Act therefore seeks to achieve a balance between low level resolution and the need to take appropriate action where it is in public interest to do so. In some situations, a complaint from a consumer may raise issues that are not completely or appropriately resolved between the parties. For example, a particular complaint may raise questions about a provider's professional standards which need to be considered further.

In addition to providing advocacy services to particular consumers, advocates must also keep in mind issues of wider public interest. Their functions include reporting to the Commissioner any matters concerning the rights of health and disability consumers which the advocate considers should be brought to the Commissioner's attention. These can then be dealt with by the Commissioner and, where appropriate, charges brought before a professional disciplinary body.

5. Responding to an Investigation by the Commissioner

Providers' approach to Health and Disability Commissioner investigations

Although my office takes care to inform providers about the Code of Rights and the Health and Disability Commissioner's processes, an investigation by my office is often a source of anxiety. It is important for providers to recognise that the Health and Disability Commissioner's investigation process can be helpful to them. If a complaint is without foundation, the investigation process gives the provider an opportunity to avoid having an unsubstantiated complaint outstanding. If the complaint is justified, then the investigation and opinion process enable the provider to identify problems and improve the quality of their service.

I would encourage providers to ensure that they assist my investigation staff as much as possible by providing full and considered responses. This assists the Commissioner to obtain the complete picture of the situation that lead to the complaint.

I would also add that an investigation by the Health and Disability Commissioner does not preclude attempts by the provider to resolve the matter with the consumer. Of course, any such attempts must be made sensitively, perhaps by letter or by contacting the investigating officer at the Health and Disability Commissioner to see if the consumer would like to have contact with the provider. However, appropriately handled attempts at resolution are consistent with the purpose of this legislation.

 

The investigation procedures

Impartial investigation

The Health and Disability Commissioner Act requires that investigations be undertaken impartially and with an open mind. The Commissioner must consider all relevant information and form an opinion based on the evidence gathered during the investigation. The Commissioner does not take sides.

Notification

When the Commissioner receives a complaint and decides to investigate, or where the Commissioner decides to investigate on her own initiative, the provider is sent a letter notifying him or her of the details of the complaint or the subject matter of the investigation and asking for comment. This response will be taken into account by the Commissioner in forming an opinion about whether there has been a breach of the Code.

Powers of investigation

The Commissioner has wide powers to gather evidence. These include the ability to summons witnesses and take evidence under oath, and to require the production of relevant documents. It is an offence, punishable by a fine of up to $3,000, without reasonable excuse to obstruct or hinder the Commissioner or any other person in the exercise of their powers under the Act, or to give false or misleading information.

Referral to advocacy

To assist the Commissioner to facilitate the "fair, simple, speedy and efficient resolution of complaints" the Health and Disability Commissioner Act allows the Commissioner at any time during an investigation to refer a matter back to advocacy for the purpose of resolving the matter by agreement between the parties. While this may not be appropriate and would not usually occur where a matter of wider public interest or professional conduct is involved, such referrals have been very successful to date in achieving a satisfactory outcome for the parties.

Referral to mediation

As part of the low level dispute resolution aim of the Act, the Commissioner may call a mediation conference at any stage during an investigation. To date there have been a number of successful mediations and this is an option for resolution of disputes which is likely to be used increasingly in the future. Information disclosed during a mediation cannot be used as evidence by the parties in any other forum. Furthermore, agreement between the parties precludes an action being taken in the Complaints Review Tribunal. However, it may be appropriate for the matter to be raised with the health professional body, for example if it is in the public interest for the provider's professional practice to be reviewed.

Interfaces during an investigation

The Health and Disability Commissioner Act provides for interfaces between the Health and Disability Commissioner and other agencies with an interest in the subject matter of an investigation. Working with other agencies is sometimes an important part of promoting and protecting the rights of health and disability services consumers. If, during the investigation, the Commissioner is of the opinion that there is evidence of a significant breach of duty or misconduct, the matter must be referred to the appropriate agency and in serious cases this may involve the police. Alternatively, if the Commissioner considers that it is in the public interest to do so, a matter may be brought to the attention of the appropriate person or authority. For example, if the investigation relates to a rest home, the Commissioner may consult with the Regional Licensing Office of the Ministry of Health, or if the complaint involves a registered health professional, the Commissioner may choose to consult with the relevant health professional body. Where appropriate, the Commissioner also consults and co-operates with other personal rights agencies, such as the Ombudsmen's Office, the Human Rights Commission and the Privacy Commissioner.

Use of expert advisors

In some cases, where the Commissioner proceeds with the investigation, she may obtain the opinion of an expert in the provider's field to provide her with information which will be of assistance in reaching an opinion on whether there is a breach of the Code. This is particularly likely if the matter involves a complaint about clinical standard of care.

Commissioner's options following an investigation

Following an investigation, the Commissioner forms an opinion about whether on not the provider has breached the Code. The Commissioner may also make recommendations about what actions should be taken, for example apologising to the consumer, implementing appropriate systems, or undertaking training. Where the Commissioner intends to make or publish a report or recommendation which makes comment adverse to any person, that person will be given a reasonable opportunity to respond. If the Commissioner intends to take further action in relation to a breach of the Code by a nurse or midwife, the Nursing Council is notified. The Commissioner is also able to report her opinion to any person that she considers appropriate, for example, a health professional body, a funder, or the Minister of Health.

In addition, the Commissioner may refer the matter to the Director of Proceedings, who is an independent statutory officer established under the Health and Disability Commissioner Act. It is the Director's responsibility to decide whether legal action should be taken before the Complaints Review Tribunal or any of the health professional tribunals, such as the Nursing Council.