Page Section: Centre Content Column

Medico-legal Secrecy

Ron Paterson
Health and Disability Commissioner

The charge: secrecy is the default position
"Doctors and nurses whose conduct or clinical practice come under the scrutiny of the Health Practitioners Disciplinary Tribunal or the Health and Disability Commissioner typically continue to enjoy anonymity even when the complaints against them are upheld. Secrecy, and not disclosure, is the default position" ('Informed consent in the dark', Herald on Sunday editorial, 30/7/06).

The evidence
Is the charge that "secrecy is the default position" a fair summation of the availability of public information about complaints and discipline of health practitioners and adverse findings re healthcare organisations?

HPDT
Hearings are open to the public (and the media). Interim name suppression is the default position. In a new twist, reasons given include the risk that "publicity is likely to cause a great deal of harm to potential [cosmetic surgery] patients who are emotionally and physically under stress when they attend [Dr N's] clinics … The patients are by the very nature of their illness, very vulnerable" (Re Dr N, HPDT 55/Med06/37D, 28/8/06).

It is said to be "most unusual" for a guilty practitioner to receive permanent name suppression, and that this occurs only in "exceptional circumstances" (Gay Fraser, HPDT Executive Officer, Herald on Sunday, 30/7/06). But the statistics tell a somewhat different story. In 2003-05, 50% of guilty doctors, 66% of guilty pharmacists, and 87% of guilty nurses were granted permanent name suppression. In 2006-07, the HPDT has granted permanent name suppression to 1 in 5 practitioners found guilty (19%). So suppression in such cases is not "exceptional", and recent decisions of the Tribunal suggest that the commitment to openness may be wavering:

Dr S (HPDT 50/Med06/28D, 31/8/06) - GP found guilty of professional misconduct in treatment and management over 5 months of a woman with a 14.7kg ovarian cyst. The Tribunal concluded (3 v 2) that permanent name suppression was justified by:
1) stress and trauma on Dr S and family (no medical evidence adduced)
2) misconduct at the lower end of professional offending
3) "[t]he Tribunal's primary goal … to rehabilitate Dr S" (para 235). Risk that a "false impression" would be created in the media about the true nature of Dr S's errors (ie, we can't trust the media).

This is a very low threshold for permanent name suppression.

Nurse X was recently found guilty of professional misconduct in relation to her care of a patient in a rest home (oral decision, HPDT Nur06/47D, 7/3/07). She had already been named (and filmed) on the Target television programme (in relation to general allegations of abuse which were not before the HPDT), but the Tribunal has granted her permanent name suppression (reasons to follow).

Is publication of name by HPDT to be reserved for sex, drugs, deception and fraud? Does the public interest extend only to salacious information and not to information about substandard care?

HDC
"The watchdog is muzzling itself" (Saul Holt, unpublished LLM research paper, University of Auckland, 2006). There has never been an open hearing by HDC. Secrecy is the norm, except in rare cases where the Commissioner considers that the provider is a risk to public safety:
• Midwife O'Neill (1999)
• Dentist Rama (2000)
• Natural therapist practitioner Mogridge (2006)

or, for healthcare organisations, to cases where the Commissioner considers that the local community has an interest in breach findings:
• Palmerston North Hospital, MidCentral DHB (2005) - medication error
• North Shore Hospital, Waitemata DHB (2006) - maternity care; cervical cancer treatment
• Southland DHB (2006) - urology service prioritisation.

The above cases were notable for:
1) widespread media publicity
2) leading to action by other DHBs
3) prompting action by the Ministry of Health (eg, national cervical cancer audit).

Is publicity necessary to compel changes nationally?

The rationale for the change in HDC's policy - to name provider organisations found in breach - was that "healthcare organisations, particularly DHBs, should expect to be publicly accountable for the quality of care they fund or provide" (NZ Doctor, 3/5/06, 16). I predicted that "as HDC's profile is raised, we expect to receive more complaints" (idem). And so it has proved - complaints from 1 July 2006 to date are up 18% over the same nine-month period one year earlier.

Note that no private hospitals, rest homes, pharmacies or medical centres have been named by HDC in releasing breach findings.

HDC's reticence about naming providers has some perverse results, for example:

1) Opinion 05HDC13588 (12/12/06), dentist in breach of Code for slapping child. Non-publication of name led "appalled dentists" to say that "a member of their profession who slapped a six-year-old female patient should be named and shamed" (Dominion Post, 22/1/07).
2) Opinion 04HDC19938 (31/8/06), GP prescribed beta-blocker to alleviate migraine in 37-year-old patient without checking whether she was asthmatic; patient died. Concerns were expressed regarding the medical centre's record-keeping systems. Widower Philip Lake identified his wife Lynley and named the medical centre in the media following the release of HDC's anonymised findings (Herald on Sunday, 8/10/06). Doesn't the local community have a valid interest in knowing?

What does the statute book say about name suppression?
Section 14, New Zealand Bill of Rights Act 1990:
"Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form."

Section 4, Official Information Act 1982 (OIA):
"The purposes of this Act are … :
(c) To protect official information to the extent consistent with the public interest and the preservation of personal privacy."

Section 5, OIA:
"… the principle that [official] information shall be made available unless there is good reason for withholding it."

Section 9(1), OIA:
"… good reason for withholding official information exists … unless, in the circumstances of the particular case, the withholding of that information is outweighed by other considerations which render it desirable, in the public interest, to make that information available."

Section 9(2)(a), OIA:
"[Good reasons include] if, and only if, the withholding of the information … is necessary to protect the privacy of natural persons …"

Section 95(2)(d), Health Practitioners Competence Assurance Act 2003 (HPCAA):
"If, after having regard to the interests of any person (including, without limitation, the privacy of any complainant) and to the public interest, the Tribunal is satisfied that it is desirable to do so, it may … make … an order prohibiting the publication of the name, or any particulars of the affairs, of any person" (emphasis added).

Section 96(3), HPCAA:
"[An order] cannot be made under section 95(2)(d) in respect of -
(a) any communication by or on behalf of the Health and Disability Commissioner under the Health and Disability Commissioner Act …"

Section 6, Health and Disability Commissioner Act 1994 (HDC Act):
"The purpose of this 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."

Section 14(1), HDC Act:
"The functions of the Commissioner are as follows:
…
(c) To promote … by publicity, respect for and observance of the rights of health consumers and disability services consumers …
(d) To make public statements and publish reports in relation to any matter affecting the rights of health consumers or disability services consumers …"

Section 59(1), HDC Act:
"Every investigation ... by the Commissioner may be conducted in public or in private."

Section 45(2), HDC Act:
"[Following breach finding] the Commissioner may …
(b) Report the Commissioner's opinion with reasons … to …
(iii)  Any other person that the Commissioner considers appropriate."

What does the case law say?
The leading cases on name suppression in criminal proceedings, in interpreting the power to prohibit the publication of names (in section 140(1) of the Criminal Justice Act 1985) in light of the Bill of Rights Act, state:

"[T]he starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report on the latter fairly and as "surrogates of the public" … the prima facie presumption as to reporting is always in favour of openness."
R v Liddell [1995] 1 NZLR 538, 546-547, per Cooke P (CA)

"[T]he best protection against speculation is the freedom to receive and impart information recognized by s 14 of the New Zealand Bill of Rights Act 1990."
Lewis v Wilson & Horton [2000] 3 NZLR 546, 564-565, per Elias CJ (CA).

The case law on the predecessor provision to s 95(2), HPCAA (s 106(2), Medical Practitioners Act 1995) was mixed. Some judges favoured open reporting - for example, Doogue DCJ in Harman v MPDT (DC Auckland, NP No 4275/00, 3/5/00): "[T]he objectives of the Act to protect the public will also be served by openness of reporting of proceedings. The public interest requires identification of those practitioners who fall below the required standards" (para 13); Laurenson J in F v MPDT (HC Auckland, AP21-SW01, 5/12/01) stressed the right of the public and potential patients to know the identity of the practitioner so as to be able to make an informed choice whether they wish to engage his or her services in the future (paras 66, 75). Other judges have been much more sympathetic to the doctor's personal interests. The highwater mark of such an approach (albeit in the context of interim name suppression) is the judgment of Frater J in Director of Proceedings v I (HC Auckland, Civ-2003-485-2180, 20/2/04), an approach described by Manning as "a more lenient view taken in favour of those who are educated, professional, affluent, or in possession of a position of status" ("Health Care Law - Part 1: Common Law Developments" [2004] NZLRev 181, 206).

The approach of the courts to s 95(2), HPCAA is not yet settled. The most authoritative statement to date is that of Panckhurst J in T v Director of Proceedings (HC Christchurch, CIV 2005-409-002244, 21/2/06):

"Once an adverse finding has been made, the probability must be that public interest considerations will require that the name of the practitioner be published in the preponderance of cases." (para 42)

"Openness and transparency in relation to the hearing and outcome of a medical disciplinary process are in themselves important values. But more than that, the right of the public to know of failings on the part of a general surgeon is to my mind a most pressing public value consideration in the circumstances of this case." (para 62)

The judgment is under appeal and is set down for hearing in the Court of Appeal on 2 May 2007.

There is only one High Court decision on the power of the Health and Disability Commissioner to publish the names of providers found in breach. In Culverden Group Ltd v Health and Disability Commissioner (HC Auckland, M1143-SD00, 25/6/01) Glazebrook J stated:

"I understand too that a copy of the report with all details of names and any other identifying factors [removed] will be posted on the Commissioner's website. Given the educative functions of the Commissioner this appears to be a totally reasonable action. While the Commissioner has the power to publish a report with names, it is my understanding that the Commissioner does not intend to do that in these circumstances. This again appears reasonable". (para 102)

Note that the comments were made in the context of unsuccessful judicial review proceedings to prevent the Commissioner from forming a final breach opinion (after an earlier threatened injunction if HDC published a non-identifying breach opinion!). The final HDC Opinion (97HDC9172, 11/7/02) found breaches of a consumer's right to make an informed decision about entering a rest home. Media publicity in 2005 about allegations of neglect of residents at the rest home led the Director-General of Health to issue a closing order.

There are no Ombudsmen Act rulings on the application of the Official Information Act to HDC decisions not to name a provider found in breach because, surprisingly, no journalist has ever challenged HDC's approach and taken the Commissioner to the Ombudsman. (Providers have successfully challenged HDC's earlier approach of withholding the names of expert advisors.)

Overseas practice
The secrecy of complaints and discipline in the New Zealand medico-legal system is increasingly out of step with the approach taken in comparable jurisdictions overseas. In Ontario, the College of Physicians and Surgeons of Ontario is the professional regulator for complaints and discipline in relation to doctors. Name suppression is unheard of and the College publishes the names of doctors with charges pending, together with a brief description of the conduct charged. The College website (www.cpso.on.ca) also publishes an alphabetical list of doctors who have been found guilty of a disciplinary offence, including a summary of the nature of the offence.

In the United Kingdom, the General Medical Council publishes a schedule of all upcoming hearings with the name of the doctor and a summary of the case (http://www.gmc-uk.org/). The outcomes of disciplinary hearings are also published.

It is ironic that New Zealand, which inherited its medical regulatory system from the United Kingdom and has been one of the first countries to move to a system of co-regulation (ie, by professional registration authorities and an independent Commissioner) is adopting a more secretive approach to complaints and discipline than found in systems of traditional professional self-regulation. The veil of secrecy is all the more remarkable given the absence in New Zealand of the major alternative forum for public hearings about the quality of health care - the civil courts (as a result of the statutory accident compensation regime).

In the United States, consumers have access to a wide range of physician databases on the internet. Massachusetts was the first state to provide publicly accessible databases in 1996. Most states now have some form of publicly accessible database. The type of information and mandatory "disclaimer provisions" vary, but information about the results of malpractice claims and disciplinary proceedings is usually accessible. It seems inevitable that New Zealand consumers will begin to pressure for similar information to be made available in this country - particularly given the dearth of publicly available comparative information about the quality of health care.

Policy factors for name disclosure
Manning makes the case for much greater openness and transparency of health professional discipline:

"Indeed, there is a strong argument that the principles of open justice and reporting weigh even more heavily in respect of professional disciplinary tribunals in the health field than for criminal courts. The reason is that there are so few avenues in New Zealand for the public airing of health and disability complaints, given the absence of medical malpractice actions and the existence of confidential compensation and complaints systems." ("Health Care Law - Part 1: Common Law Developments" [2004] NZLRev 181, 206.)

Holt argues that "many of the arguments which [the Commissioner] convincingly makes in support of the publication of names in disciplinary proceedings can be applied with (at least) equal force to [HDC] findings" and concludes that HDC "should presumptively publish the names of providers found in breach of the Code" ("The Health and Disability Commissioner's policy of suppressing providers' names: how the watchdog is muzzling itself", unpublished LLM research paper, University of Auckland, 2006).

It seems fairly clear that the law permits HDC to publish the names of providers found in breach, and that non-disclosure may be open to challenge under the Official Information Act 1982 (with no obvious "good reason" to withhold the identity of organisational providers found in breach, since they do not enjoy the privacy interest of a "natural person"). Would publication of names be a good idea?

The following policy arguments (in no particular order of significance) support disclosure by HDC:

1) There is a public interest in such information. The principle of informed consent was at the heart of the Cartwright Inquiry Report. Judge Cartwright stated:

"I believe that most patients would not want to return to the days when doctors could be sued for negligence. Not one patient told me she wanted financial redress. The vast majority want information, a chance to take part in a treatment decision, the opportunity to decline inclusion in a trial, and the right to ensure that a negligent, rude or incompetent doctor's reputation is known so that other patients can choose alternative health care."
The Report of the Cervical Cancer Inquiry, 1988, p 172

The public is currently being "kept in the dark" about information that may influence the choice of practitioner or facility. HDC is in danger of not practising what it preaches. Right 6(1) of the Code of Patients' Rights requires providers to volunteer the information that a reasonable patient, in that patient's circumstances, would expect to receive. By analogy, should HDC, as a provider of public complaints adjudication services, volunteer names of providers found in breach, since the "reasonable public" would expect to be told. In 1999, Commissioner Robyn Stent alluded to this point in stating:

"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 …"

Cited by Skinnon & Dermott, "The Health and Disability Commissioner" [1999] NZLJ 467

2)  Publicity may "flush out" other complainants. The Cartwright Inquiry itself was triggered by a journalistic exposé of "An Unfortunate Experiment at National Women's Hospital" (Metro, June 1987). Manning notes that the cases of Drs Bottrill, Parry and Breeze provide vivid examples where publicity about the circumstances of the original complaint and the name of the doctor caused other complainants to come forward. Recent examples include Dr Fernando and Mr Mogridge. The media has played a key role in these cases, after initial suppression of information by the courts, HDC, and MPDT.

3) HDC's current practice risks harm to future patients. Holt notes (in a chilling observation):

"It would be regrettable if it took a case of repeated serious public harm, concerning which the Commissioner had earlier found a breach of the Code and not published it, for the HDC to reform its policy in the same way as the General Medical Council" (following the Bristol and Shipman inquiries).

4)  Where HDC has published the names of public hospitals and DHBs, there is anecdotal evidence that the resulting publicity has had a significant impact in prompting the organisation to improve its service and putting the focus on similar problems in other DHBs. Thus, following the publicity surrounding the Palmerston North medication safety case highlighted by HDC in 2005, Auckland DHB wrote to HDC: "This DHB has taken the key messages from your review very seriously indeed. … The measures we have put in place since receiving your report include: redesigning the drug chart so that the patient's name is handwritten; assigning a common area for patient records and drug charts in all wards; keeping the patient labels with the drug charts; and deploying a '10 rules of safe prescribing' document to all medical officers and senior nurses." This suggests that by failing to identify poor practice, HDC may be missing an important opportunity to improve the safety and quality of health care in New Zealand.

5)  There is a public interest in the workings of public institutions being open to view. As stated by Baragwanath J in Director of Proceedings v Nursing Council of New Zealand: " … [I]t can in my view be said that in today's conditions the value of public accountability is so important that a failure to consider it in the exercise of a discretion would entail error of law" [1999] 3 NZLR 360, 381-382. (Interestingly the statute in that case was also silent on the specific issue - open hearings - yet the Judge concluded that the public interest supported openness.) The free flow of information may be considered particularly important given the centrality of HDC in the New Zealand medico-legal system, the dramatic decline in medical disciplinary proceedings (due to HDC's gatekeeper function and the competence review powers of the Medical Council), and the unavailability of other avenues such as civil claims for negligence.

6)  After a decade in existence, there appears to be professional and public confidence in the fairness and robustness of HDC's breach findings. Providers have a full opportunity to challenge adverse comments before they are published. Although there is no right of appeal, HDC opinions may be challenged (for procedural unfairness or substantive unreasonableness) by a complaint to the Ombudsmen or (at much greater cost and with a narrower ambit of review) in judicial review proceedings.

7)  The media is filling the void left by the secrecy surrounding current processes. Publicity about a case often turns on the haphazard factor of whether an individual complainant tells his or her story to the media. Routine publication by HDC of breach findings identifying the provider would normalize the process and may actually lead to less sensationalism. Where inquiry findings are published, with names, by official sources, the media is able to provide balance to a story. Thus, when Southland urologist Sajan Bhatia was recently named (HPDT 77/Med/06/39D, 12/2/07) as the doctor found guilty of professional misconduct in his treatment of a woman with bladder cancer, The Southland Times stated in its editorial (3/3/07): "The question now becomes what we should make of this information. What should happen now? Here's our answer: back to work for Mr Bhatia, sadder but hopefully wiser, and of course under closer supervision as required by the tribunal."

8)  Publication of the names of providers would render HDC findings much more intelligible to the public. The Commissioner's "anonymised" opinions are sometimes virtually unintelligible. For example, in Opinion 04HDC00031 (24/2/05) re Orthopaedic Surgeon Dr B one finds the following passage:

"Dr B further advised me that while he was awaiting Dr D's opinion, he discussed with Mr A the possibility of having Dr E in [the second Public Hospital] give an opinion on the management. Information received from the first Public Hospital suggests that Dr B met with Mr A on 26 March for the purpose of discussing treatment/management options. Mr A advised me that the meeting with Dr B occurred on 31 March."

9)  The secrecy of current processes undermines public confidence in the health professions and in the medico-legal system. More than a decade after the public disquiet that led to the overhaul of the complaints and medical disciplinary system, it is still common to read headlines like "Outrage at 'old boys' network that protects medics" (Herald on Sunday, 30/7/06).

10) It is increasingly bizarre that so many other parts of the health sector are subject to intense scrutiny, yet complaints and discipline are not. Thus, we can read in the Sunday Star Times (25/3/07) precisely "How they scored", ie, which members of the DHBs' evaluation panel rated the Diagnostic MedLab tender zero out of 10, and in the recent Employment Court judgment finding that Auckland DHB acted unlawfully in dismissing an as yet unnamed "porn doctor", all the key managers are named and their conduct criticized (X v Auckland DHB, AC 10/07, ARC 52/05, 23/2/07). Tellingly, the examples given relate to civil claims in the courts.

Policy factors against name disclosure
As Commissioner since 2000, I have advocated strongly for publication of the names of health professionals found guilty in disciplinary proceedings, but against the publication of the names of providers found in breach of the Code. My thesis has been:

"I do not believe that naming individuals will benefit the community; it is more likely to hinder our investigation process and make providers unwilling to openly disclose mistakes. HDC seeks to create a culture of openness where adverse events are freely disclosed and used to improve the quality of health care. Rather than assist with identifying possible causes of an adverse event, providers who are afraid of being named, blamed and shamed if found in breach of the Code will be unwilling to accept responsibility or provide an explanation for what went wrong. The potential to improve services will be lost."
Paterson, "Public watchdog is a serious mutt", NZ Doctor, 3/5/06, 16

When challenged by the media about HDC's practice of not naming providers, my response has been:

"Being found guilty of a breach [of the Code] does not necessarily mean the practitioner was bad at their job. … They deserve to be able to protect their reputation without negative publicity blowing their misdeed out of proportion. If [HDC] was forced to identify guilty practitioners, the system would become litigious and bogged down and the community as a whole would suffer."
"Why the secrecy?", Herald on Sunday, 12/2/06

A related point is that, notwithstanding the robustness of HDC processes, it may be considered that a Commissioner's opinion that is not subject to appeal is an insufficient basis on which to jeopardise the reputation of an individual practitioner.

I note that James Reason has recently stated that the belief medical errors are necessarily due to incompetence, carelessness or recklessness for which naming, blaming and shaming are appropriate responses is perhaps the greatest obstacle to improving patient safety ("Resisting cultural change" in Lugon & Secker-Walker eds, Clinical governance in a changing NHS, 2006). Alan Merry and Mary Seddon have commended HDC on "a world-leading focus on addressing aspects of the system, which contribute to patient harm rather than seeking to identify individual scapegoats when things go wrong" (NZMJ, 21/7/06). There is a risk that naming providers (including individuals) would undermine that approach.

Conclusion
Is Holt correct in his assessment that "the public is being asked (once again) to take on trust the ability of the profession to regulate (and rehabilitate) its own, in the face of convincing recent research indicating that New Zealand hospitals are underperforming in preventing adverse events and that only a small percentage of adverse events is reported"? Is HDC losing "an important opportunity to test whether breaches of the Code are isolated by withholding performance data from the public"? Professional reputation is a critical consideration, and has to date been a decisive factor, but is HDC being "held to ransom" by the threat of non-cooperation if processes become more transparent?

I return to the purpose of the HDC Act. It is "to promote and protect the rights of consumers". The facilitation of "the fair, simple, speedy and efficient resolution of complaints" is a subsidiary purpose, expressed in the statute as "to that end". It is arguable that, in focusing on the effective resolution of complaints, HDC has underestimated the broader goal of public choice and public protection.

The Office of HDC has evolved significantly over the past decade. In my view, it is timely to reconsider the current blanket policy of not naming providers (other than DHBs and public hospitals) found in breach. On legal and policy grounds, some change in practice seems warranted. There may be a via media - extending the naming of group providers to include private hospitals, rest homes, pharmacies and medical centres; and naming individual providers where there are public safety concerns (as in the recent Mogridge cases) or additional factors, such as recalcitrant behaviour (where the provider refuses to comply with HDC recommendations) or being a "frequent flyer" (eg, where the provider has been found in breach for the third time). In every case, the overriding consideration must be the public interest.

I hope that this paper will prompt debate about the need for greater openness (on the part both of HPDT and HDC) in our medico-legal system.

HDC Medico-Legal Conference
Wellington, 28 March 2007