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New Zealand Society of Hospital & Community Dentistry

Annual Conference - 24 July 2008

Ron Paterson, Health and Disability Commissioner

It's an honour to be invited to speak at the Opening Ceremony of the Society's Annual Conference.

The great Irish poet, W B Yeats, writes in 'The New Faces" of things that endure - "Where we wrought that shall break the teeth of Time."

Health services in New Zealand have changed immeasurably over the past 100 years, like everything else in our society. But throughout the years, the commitment to a public health service has endured. And this year we celebrate 100 years of the provision of Hospital Dental Services to the people of Auckland - a service that has continued unbroken and survived waves of health reforms. It has truly "broken the teeth of time". I congratulate Garry Smith, Clive Ross and the staff of the Auckland District Health Board on this record of service.

Cartwright inquiry
I want to return to Yeats. In his famous poem Easter, 1916 he writes of the Irish uprising that "All changed, changed utterly". Richard Smith, former editor of the British Medical Journal, applied these words to the seismic impact of the Bristol Inquiry on the medical profession in the United Kingdom. For us in this country, "all changed, changed utterly" with the Cartwright Inquiry.

It's 20 years this August since Judge Silvia Cartwright delivered her "Report of the Cervical Cancer Inquiry" on events at National Women's Hospital, where women with carcinoma in situ, without their knowledge or consent, had not received standard treatment and not been kept safe. The Cartwright Report was a wake-up for the medical profession, and for the New Zealand public. In calling for a Code of Patients' Rights and an independent Commissioner and patient advocates, Judge Cartwright warned: "Health professionals need to listen to their patients, communicate with them, protect them, offer them the best health care within their resources, and bravely confront colleagues if standards slip. If this does not happen, then the kind of events disclosed during the Inquiry may well occur again."

The Code and HDC
Back in 1988, I was a lecturer in law at the University of Auckland. The Inquiry prompted me to start teaching a new medico-legal course, and to immerse myself in the area. This in turn led then Director-General of Health Karen Poutasi, and Minister of Health Jenny Shipley, to ask me in 1995 to advise the Government on the final wording of the Code of Consumers' Rights (which it had come to be called, given the expansion to cover disability services). I participated in some fairly intense negotiations with the first Commissioner, and some fascinating debate with Cabinet. But we got there, and the Code was promulgated as regulations in April 2006, and became law on 1 July 2006.  I recall the launching of the Code in the grounds of what is now the Greenlane Clinical Centre in July 1996.

I became Commissioner in March 2000. A few months later, I made my first visit to Canterbury Health and Christchurch Hospital. I recall a tense meeting with senior management, followed by question and answer session to a packed lecture theatre of senior doctors. What sticks in my mind was the question someone asked: "So, can your office ever be more than the ambulance at the bottom of the cliff? Do you have to wait till things go wrong?"

I've been determined to answer that challenge. For me the past 8 years have been a quite deliberate effort to transform the role of Commissioner from simply being a complaints handling agency, to a public watchdog speaking out to prevent things going wrong in the first place. Building a fence at the top of the cliff.

Along the way, there have been some major influences on public and professional recognition that sometimes health care harms patients. Most significant was the landmark Institute of Medicine report, To Err is Human, in 1999. As significant in this country, but much less publicised, was Peter Davis's 2001 study on "Adverse events in New Zealand public hospitals". Yet somehow the message of the need to make hospitals safer did not galvanise the attention of health professionals, politicians, and the public. The focus was on other things - the new district health boards, the renewed emphasis on medical professionalism (led by ASMS), and the reforms of health professional regulation introduced by the Health Practitioners Competence Assurance Act.

External regulation
All professionals need to get used to the fact that our work may come under external scrutiny. But some people rail against even the fairly gentle complaint and discipline system we have in New Zealand. For example, Hamilton surgeon Ross Blair has stated:

"We as surgeons are in danger of becoming more indentured labourers … The best safeguard for patient care is the professional contract between doctor and patient."
(9 May 2003, Marlborough Express.)

Even David Galler, before he defected to be the Minister's part-time Principal Medical Advisor, has said:

"[We] … risk further eroding medical professionalism in New Zealand by imposing more external controls on the profession as opposed to promoting rigorous internal regulation." (May 2002)

Onora O'Neill, the Cambridge philosopher, in her influential Reith lectures in 2002, suggested that the accountability revolution often obstructs the proper aims of professional practice.  She said:

"The pursuit of ever more perfect accountability provides … patients with more information, more comparisons, more complaints systems; but it also builds a culture of suspicion; low morale and may lead to professional cynicism and then we would have grounds for public mistrust."

We need intelligent accountability and sensible regulation, sensitively applied (not "blunt instruments"). And I think that most of the time, this is what the New Zealand health regulatory system delivers.

Clinical governance and teamwork
In the latest issue of the New Zealand Medical Journal, Professor Des Gorman and Sir John Scott rail that "the New Zealand health system is subject to government rather than governance" with "inadequate representation of doctors in the health system elite" (NZMJ editorial, 20 June 2008).

Frankly, I think there's a lot of hot air spouted about clinical governance. It often sounds like a debate about 'who's on top'. I think most health professionals understand that our hospitals and our health systems have become incredibly complex; medicine itself can deliver a level of technical care that was once undreamt of; we have an population living into advanced old age with old sorts of chronic conditions but high expectations of what medical treatment can achieve; and, despite massive injections of additional money, the public purse simply cannot afford to pay for all the demand.

It's nonsense to think that doctors will have all the answers to these problems. Of course we need skilled managers and policymakers to help shape our health system. And we also need much more a focus on patients - our systems have been designed around a cottage industry model of healthcare delivery that dates from the 19th century.

Teamwork is key. As noted in a Royal College of Physicians report in 2005, "Most discussions of contemporary medical practice are plagued by manufactured and often false conflicts: between doctors and managers, specialists and general practitioners, employers and employees". At the heart of the Code of Patients' Rights in this country is the statement, "Every consumer has the right to co-operation among providers to ensure quality and continuity of services" (Right 4(5)). As far as I know, this provision is unique. Yet it goes to the heart of modern healthcare. To be a good health professional, whatever your work setting, you need to be an effective team player, making sure that your patient does not fall through the many cracks in a complex health system.

The health system also needs to be responsive to the wisdom of clinicians on the front line, in the words of James Reason. The public depends on informed health professionals to advocate when patient safety is being compromised - and management need to take those concerns seriously, as they did.

Complaints about hospital and community dentistry do not loom large in the work of HDC - well done! A search of our database revealed only three cases over the past eight years.

Case study 1 (Auckland DHB)

Managing patient expectations about secondary procedures
As Health and Disability Commissioner, I cannot adjudicate over issues of funding or access to health services.  However, the usual features of one case prompted me to enquire further about a DHB's decision not to fund dental implants.

A healthy young woman had publicly-funded reconstructive surgery for the removal of a blastoma from the mandible (lower jaw).  Prior to the operation, the patient was informed that this procedure would result in the loss of three molars in the lower left quadrant.  A discussion regarding secondary procedures ensued.  The patient was led to believe that she could have dental implants within the public system indicating that:

1. such implants were clinically appropriate; and
2. they would be publicly funded.

After her surgery, the patient was declined publicly funded dental implants.  DHB staff told her there is "no room for implants", "the risk to a healthy bone and tissue graft is too high", and it is "expensive".

If the proposed implants were indeed not clinically appropriate, the DHB had acted appropriately in declining to offer the surgery.  However, the patient had received a second and third opinion that dental implants were feasible and appropriate.

The patient complained to HDC about the DHB's decision to decline her surgery when she expected it would be approved.

In my opinion, she was entitled to a fuller explanation for the decision so I wrote to the DHB asking that a meeting be arranged with her original surgeon to clarify her surgical options.

After the surgeon's review of the patient and meetings between the clinicians, the Clinical Director of the Oral Health Service wrote to the patient confirming the DHB's decision not to fund dental implants.  Importantly for the patient, this letter clearly explained the reason for the decision.  The Clinical Director said:

"Financial cost was not the reason for this decision…The clinical prognosis of the bone graft is excellent and it was felt that the long term outcome could be significantly compromised by further intervention…I can assure you the decision is based only on a clinical assessment of the risks and the likely outcome if this [surgery] were undertaken".

He also explained that it was appropriate for the surgeon to offer suggestions for reconstruction and record any patient preferences before the initial procedure.  However, the surgeon could never "guarantee" dental implants because the appropriateness of any reconstruction always depended on the outcome of the initial procedure.

I was satisfied that the Clinical Director's response was thoughtful and provided a clear and reasoned decision.  The HDC complaint file was closed.

07HDC18679, 14 March 2008.

Case study 2 (Auckland DHB)

Dissatisfaction with community dental services - Resolved with Advocacy
A father complained to HDC about the dental services provided to his 34-year-old intellectually and physically disabled son.  The DHB provided the complainant's son with community dental care.

Over a 10 year period the complainant's son had had regular consultations with a dental therapist and a consultant dental surgeon.  A summary of his dental treatment recorded "cooperation issues" (including aggression and an attempt to bite the dental therapist) at multiple consultations.  In light of his lack of cooperation, the patient was eventually given "one complete dental treatment" under general anaesthetic.  This examination revealed a great increase in oral disease.  He had a number of teeth extracted and the consultant noted that he would "most likely lose his remaining teeth at the next treatment under general anaesthetic."

The complainant felt that a DHB had not provided his son with adequate dental services. 
He was particularly concerned at the delay in diagnosis of oral disease and felt that the poor service had resulted in the inevitable loss of his son's teeth.

The complainant first raised his concerns with the DHB directly with the assistance of an Advocate.  However, he had trouble getting a response so the Advocate arranged a meeting with his son's support service provider and his dental service providers to try to resolve his concerns.  The complainant's son also attended the meeting.  However, unfortunately the dental therapist was unable to attend.

The complainant's concerns about his son receiving inadequate dental care from both his support service provider and the DHB were discussed at that meeting. In addition, the complainant raised his concern about the way people with disabilities are dealt with in the dental health system.

Importantly, the parties agreed to a number of actions in response to the complainant's concerns.  These were:
• commitment by the support service provider and the DHB for better communication and relationship between their two services;
• the consultant dental surgeon was to provide training to the support service provider's staff about managing the dental health of those consumers who require assistance to maintain oral care;
• consumers were to be encouraged to visit clinics where there is equipment for treatment rather than the DHB dentist making home visits;
• the consultant dental surgeon was to inform the dental therapist (who could not attend the meeting) about the discussions at the meeting;
• the support service provider was to investigate the concept of GP-provided sedation for those consumers resistant to conscious dental examination.

These positive agreed outcomes appeared to resolve the complainant's concerns and  HDC's file was closed.

04HDC01069, 20 April 2004

Case Study 3 (Otago DHB)

Investigation into the services provided by an oral and maxillofacial surgeon
While on holiday in New Zealand, a 65-year-old man was involved in a high speed head-on crash with another vehicle.  He was attended at the scene by ambulance services and then flown by helicopter to a large public hospital.  In addition to other leg injuries, he suffered extensive facial fractures and a base of skull fracture requiring maxillo-facial reconstruction and repair of the floor under the frontal lobe.  The man underwent surgery, was discharged and returned to his home country (Australia) just over one month later.

Part of his complaint to HDC was that the oral and maxillofacial surgeon's treatment was "substandard, experimental, ineffective, unprofessional, fumbling, and damaging" and caused him anxiety, pain and suffering.

He was dissatisfied with his post-operative appearance and facial function, requiring secondary procedures to correct his perceived "disfigurement".  He raised concerns about the surgeon's technique, the length of time under general anaesthetic, and complained that he had not been told the truth about potential post-operative complications.

Commissioner's opinion - no breach
After an investigation, I formed the opinion that the oral and maxillofacial surgeon had not breached the Code.  The surgeon had a duty to provide services with reasonable care and skill that complied with professional standards.  I was guided by my independent advisor who concluded that the surgeon acted correctly in his choice of operative procedures, the execution of these and his post operative follow-up.  Therefore, he did not breach Rights 4(1) and 4(2) of the Code.

Furthermore, having reviewed all the information available to me, I was of the view that the surgeon took reasonable actions in the circumstances to provide full information about the operation pre-operatively and post-operatively.  Therefore, he did not breach Right 6(1) of the Code.

99HDC01852, 23 May 2001
(not on the website)

Patient safety
This year, there has been a major focus on patient safety and quality improvement - in the public and private system.

This year, two events have galvanized action. First, my widely reported comments in February to Health Select Committee, that our hospitals are not yet acceptably safe (which the media rather misleadingly reported as "Hospitals unsafe, says Commissioner), that we need to start publishing some comparative healthcare quality data, and that with 21 district health boards doing different things, we have "an unduly complicated system for 4 million people". Secondly, soon afterwards, the release by QIC and all the district health boards of the sentinel event information (in response to requests made under the Official Information Act, and a ruling in favour of disclosure from the Ombudsman), leading to further wave of media publicity - as in this example from the New Zealand Herald. And to swift action from the Minister, including a commitment to public reporting, a threat of financial penalties for boards that don't prioritise patient safety, and investment in major patient safety initiatives led by QIC (backed by money in the recent budget).

Public confidence and professional morale
I do worry about the risk of undermining public confidence and sapping professional morale. That's why, whenever I make public comments about this issue, I remind people that all western health systems are facing these challenges, and that the vast majority of patients in New Zealand hospitals receive very good care most of the time. HDC even advertised in local papers last year, seeking patients' stories of great care, and published a booklet, "The Art of Great Care".

But we are kidding ourselves if we don't see the need for greater coordination of efforts nationally, and for faster progress to reduce avoidable harm to patients. Our patients and our staff deserve no less.

So, to conclude, I applaud the achievements in hospital and community dentistry in New Zealand, especially Auckland. And I wish you all the best for a successful conference over the next three days.