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New Horizons - Consumers Rights and Private Hospitals

Presentation to Annual New Zealand Private Hospitals Association Conference
10 October 2000

Ron Paterson
Health and Disability Commissioner

It is a pleasure to be here today. In responding to the Association's invitation to speak at this conference, I was interested to see that the Association's motto is promoting excellence in care. That is my role too. The vast majority of the complaints my office receives, about 80%, are about quality of care issues. There has been much talk around New Zealand in the last few years about quality of care, and quality assurance. This is empty talk unless it translates into better care for consumers and it is part of my role to encourage and promote this. So I am happy to see that your organisation shares the commitment to provide quality services - excellence in care.

The Health and Disability Commissioner Act 1994 is built on the premises that (1) the pre-existing law was inadequate to protect health and disability services consumers, and (2) there existed a power and knowledge imbalance between health professionals and the consumers of their services that needed to be righted. Parliament's response was to create the office of the Health and Disability Commissioner, authorise the creation of a Code of Rights, and provide suitable mechanisms for enforcement. The purpose of the Act is to 'promote and protect the rights of [health and disability] consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints' . This, then, is an Act with attitude. It is specific consumer protection legislation.

But every health customer's complaint of Code breach is a potential threat to a health professional or provider's reputation or interests and so it is not surprising that providers find it unsettling to be on the receiving end of a complaint from a consumer. For many professionals, and for managers, it is an affront to stand accused of providing a substandard service. Feelings of shock and anger are a natural response. However, complaints are a fact of life for contemporary organisations and professionals. I encourage you to use consumer complaints and Commissioner's investigations as a tool through which your hospitals and staff can improve the quality of the services provided to consumers.

Public vs Private - the differences

Important differences exist between public and private hospitals:

• In the public setting, patients see overall responsibility as lying with the hospital. Private patients, in contrast, often pay the hospital/consultant/anaesthetist separately and may see responsibility as diffuse.
• Private hospital patients usually pay for services and may have higher expectations than public hospital patients, and be more assertive about their rights as fee-paying patients. ?The private sector often has more empowered consumers who can afford to hold medical insurance or have private means, and may be more assertive about their rights.
• Consumers are generally admitted to private hospitals with specific problems that tend to have a defined treatment regime and likely outcome. Public hospitals have a greater share of patients with multiple, complex conditions.
• Services provided in private hospitals are often less complex. For example, the private sector plays a less significant role in relation to high-risk accident and emergency services and acutely ill mental health consumers.

Complaints Analysis

I receive fewer complaints about private hospitals than public hospitals. Doubtless this reflects the greater use of public hospitals by consumers.

During the 1999-2000 financial year my office received 1,088 complaints, slightly down from the previous year's total of 1,174 complaints. 15 complaints were about services provided by private medical hospitals, and 20 complaints were against private surgical hospitals. This contrasts with the previous year when the Commissioner received a total of 12 complaints against private medical and surgical hospitals. So in terms of the proportion of my office's overall investigative load, the depressing news is that private hospitals are becoming more prominent. On the positive side (so far as my Office is concerned), although we received 35 complaints about private hospitals in 1999-2000, we closed 40 complaints. Throughput is important for our business too!

Only 17% of all complaints resulted in a breach of the Code. Of the 1,303 complaints closed in 1999-2000, there were 227 breach reports. Eighty-six complaints were resolved with advocacy assistance or through mediation. Twenty-one cases (9% of the 227 breach cases) were referred to the Director of Proceedings for possible further action before the Complaints Review Tribunal and/or a disciplinary body. Of the 40 complaints against private hospitals closed in 1999-2000, only two resulted in a breach finding and neither was referred to the Director of Proceedings. There are currently 21 complaints about private hospitals under investigation.

Case study - Private Surgical Hospital

Late last year my predecessor, Robyn Stent, concluded an investigation into the care provided to a consumer by a private surgical hospital. The consumer's wife complained that after a knee amputation two corrugated drains were not removed from the stump causing the stump to become infected. The drains were placed in the stump during the operation. This was noted in the operation notes but these notes were not available to nursing staff until several days after the operation. The nurse directly caring for the consumer had no idea that the drains were in the wound, and had no familiarity with the type of drains used. The surgeon said that three or four days after the operation the surgeon that he asked the nurse to remove the drains. The nurse said he asked her only to trim the drains. She trimmed the drains as requested and noted it in the patient notes and told the oncoming shift. The consumer was subsequently discharged with no-one noting that the drains were still in place and about a week later developed an infection. It was not until two weeks after the infection developed that a x-ray confirmed that the tubing was still in the wound.

The Commissioner investigated the surgeon, the nurse who cared for the consumer and the hospital. The Commissioner's final report found that the private hospital had itself breached Right 4(5) and 4(2) of the Code.

Right 4(5)

The hospital's documentation system was fragmented. Information was recorded in several places, some documentation was not available to nursing staff, and the nursing care plan form was designed for the management of patients following a total hip joint replacement rather than an amputation. This did not allow for co-ordinated service provision that ensured quality and continuity of care. The Commissioner recommended an integrated documentation system where records were comprehensive, appropriate, and available to all staff.

I cannot emphasise enough the importance of integrated documentation systems. In my brief time as Commissioner I have already reviewed many investigations where patient notes have been fragmented. Often patient information has been held in a number of places or in the same location on a number of forms. This means that those who are involved in providing care to the consumer may lack access to crucial information at important times, or are unable to refer quickly to the necessary information because they cannot find it amongst a myriad of forms. This results in confusion for all involved in the consumer's care, and sometimes in crucial information being overlooked by staff, with significant consequences of the consumer. In the case my predecessor investigated, vital information about drains was not available to nursing staff for the first three days of the consumer's treatment. When the information was finally recorded on the patient notes, no one else involved in caring for the consumer noted it.

Right 4(2)

Although the hospital had a procedure manual for nurses to refer to, its purpose was to reinforce prior learning. An operation where drains were inserted into a stump during an amputation operation had never before been performed at that hospital. The hospital provided no instructions to nursing staff on patient management, nor did it ensure that nurses were competent to provide post-operative care of this type.

The Commissioner also noted that the consumer's wound was not inspected before discharge. He was given no instructions on wound management, medication or pain management. There appeared to have been no attempt to find out whether the consumer required follow-up or home help. The Commissioner recommended that discharge planning be reviewed, a comprehensive patient management plan be introduced which included staff training, and that hand-over procedures between nursing groups be audited.

This case was of concern to the Commissioner as it raised issues about care being properly co-ordinated. Systems failures and individual failures of this type are of great concern and arise in many of my investigations into organisational providers, including public and private hospitals.

Effective communication is often the key: between providers and consumers; between providers and consumers' families; and between staff and management. The first two weeks after a family admit a relative to a hospital for long term care appear the most important in terms of communication, and is the time in which most usually complain. Additionally the initial responses to a complaint are critical in terms of providers' ability to ensure resolution. Are you open and honest in your communications? Has the right person been asked to see or correspond with the complainant?

Because the health sector is one staffed by people and not by automatons, there will always be examples of human fallibility. What we should expect is that individuals involved in the provision of health care are professionally trained, provided with ongoing education and support, and have their performance monitored.

Vicarious liability

Liability on the part of corporate entities, such as private hospitals, may arise because of a direct breach of the Code, or because the hospital is vicariously liable for breaches of the Code by employees, agents or members of the organisation. Vicarious liability arises where one person or organisation is held to be liable for breaches of the Code of Rights by a second person. Earlier in the year I formed the opinion that a private hospital, that also provided rest home services, was vicariously liable for breaches of the Code by the manager of the home and hospital. It was my opinion that the home and hospital had not proven that it took all reasonably practicable steps to prevent its employee from breaching the Code. If the home and hospital could have demonstrated that it had done all it could reasonably be expected to do to prevent the breach from occurring, then issues of vicarious liability would not arise.

It is instructive to reflect on the four broad policy reasons behind the development of the legal concept of vicarious liability:

An employer benefits from the advancing of his or her or its economic interests through employees. So an employer in fairness should be held liable for the losses caused by the employees in the course of employment. An employer is more likely to be in a position to compensate the injured party than the employee who had caused the damage was the 'deep pocket principle'. It is easier for employers to insure against liability and to distribute the cost through pricing mechanisms. Holding a person or organisation vicariously liable for the acts or omissions of another person has significant deterrent value. It encourages employers to develop risk management strategies, to provide better training and encourages more effective supervision of employees by employers.

Employing authorities, such as private hospitals, play a vital role in ensuring excellence in care. As health providers, each of you has a responsibility to ensure that the care that you provide and the care that your hospitals provide is the best that it can possibly be. The Code of Rights is an effective tool to assist you in your efforts to provide excellence in care and I encourage you to use it in your dealings with consumers.

CONCLUSION:

While the investigation process established by the Health and Disability Commissioner Act is independent and impartial, the overall purpose of the Act is to promote and protect the rights of consumers. This includes the right of all consumers to safe, high quality services.

Key issues for public and private hospitals include:

Setting standards to benchmark and monitor performance.

Improved and consistent record keeping at all levels of the professions.

Designating a specific health professional within the hospital as responsible for overall care co-ordination for every consumer.

Improved credentialling, re-certification and competence review programmes for all hospital staff.

All New Zealanders have a right to a high quality health care and each of you shares part of the responsibility for ensuring this is delivered. This country is unique in having a Code of Health and Disability Services Consumers' Rights, with statutory force. I encourage private hospitals to continue to improve the quality of health care you deliver by working on the areas for improvement highlighted in my remarks today.