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Putting Consumers First to Provide Services of an Appropriate Standard

1. Introduction

Health is about people. The Code of Rights recognises that the maximisation of peoples' health and wellbeing depends on services being delivered by a system which focuses on individual consumers' needs and which includes support systems that complement and enhance clinical standards. This fundamental consumer-centred philosophy is particularly evident in Right 4 of the Code, which gives all consumers the right to health and disability services of an appropriate standard. This afternoon I would like to consider how this Right operates in practice to ensure that individuals are always placed at the heart of the sector.

At the outset, it is important to remember that the Code itself is a standard which all providers must meet. Each of the ten rights in the Code focuses on a particular aspect of service delivery and reflects a fundamental element of good professional practice. Providers, in meeting their obligations under the Code, must take a holistic approach, measuring their standards of practice against not only the clinical aspects of a consumer's care, but also his or her personal, social and spiritual needs.

Remember too that the Code is about people, and respect for the intrinsic value and uniqueness of each individual underlies all the rights within it. It is not co-incidental that the right to respect is the first Right in the Code. Closely associated with Right 1 are the rights to fair treatment (Right 2), and to dignity and independence (Right 3). While the provision of any service, particularly a disability service, entails a degree of dependence on the part of consumers, Right 3 directs providers to always keep in mind the objective of providing the service so as to optimise the consumer's independence and quality of life. (This principle is also contained in Right 4(4), which I will refer to in more detail shortly.) These first three rights of the Code together form an attitudinal umbrella under which all services must be delivered.

While I am not able to give advance interpretations of the Code, and there is insufficient time this afternoon to discuss each part of Right 4 in detail, I would like to focus on some of the issues which have arisen from its interpretation in recent months and demonstrate the way in which the five parts of Right 4 have been applied by reference to actual cases.

While I am not able to give advance interpretations of the Code's application I hope that the following discussion will help clarify the approach I have taken to interpretation of the Code's requirements for informed consent since they came into force on 1 July 1996. This is an important topic - over the last year in particular I have become increasingly concerned about the lack of understanding and adherence to the Code's requirement to obtain informed consent by a range of providers.

2. A new Framework for Addressing Standards

Prior to the Code's implementation, many aspects of health and disability service delivery were already regulated by statute or regulation, with a number of statutes regulating health professional groups, including their registration and discipline. However, such legislation traditionally focused on enforcing standards of clinical practice and the disciplinary mechanisms under these statutes were unable to adequately resolve consumers' complaints on other matters. As I have already mentioned, the Code provides a framework for addressing professional standards in a wider context, which includes the guiding principle that the service is to be consumer-focused, not provider oriented. Accordingly, Right 4 of the Code - along with all the other rights in the Code - applies to all providers, not just those who are registered, or for whom legislation has historically provided.

3. The Code and Competence

Introduction

Right 4(1) states that every consumer has the right to have services provided with reasonable care and skill - the standard on which the common law of negligence is based - and I can receive complaints about acts or omissions which fail to meet this standard. The potential scope of this Right is very broad. Examples include a Crown Health Enterprise failing to provide a system for storing quarantined products separately from non-quarantined products, and a midwife allowing an inappropriate time delay to occur before obtaining a consultant referral during a consumer's labour.

Sometimes a provider's failure to meet the standard of reasonable care and skill may lead to a consumer's death. It is significant that the Code covers such situations. Medical professionals are now less likely to be prosecuted for manslaughter due to a 1997 amendment to the criminal law which requires their conduct to be a "major departure from the standard of care expected of a reasonable person in those circumstances." The Code of Rights and the complaints process of the Health and Disability Commissioner Act still provide an avenue for redress and accountability in circumstances where the departure from an acceptable standard of care fails to meet this new criminal law standard. Indeed, I am empowered to investigate not only individual providers, but also the systems behind the provision of service.

For example, my report on Canterbury Health Limited illustrates the way in which inadequate and inappropriate systems compromise consumer safety. At Christchurch Hospital, a number of major factors in the period under investigation (1996-97) contributed to the breach of Right 4(1) by Canterbury Health. These included insufficient staff and insufficient levels of skill, particularly in the emergency department; substandard care in the medical day unit; poor management practices leading to a breakdown in co-operation between management and staff; a lack of documented policies and procedures which caused risk when restructuring occurred; a failure to heed advice by clinical staff; and a lack of quality assurance and risk management processes.

This opinion (Report on Canterbury Health Ltd) provides discussion of the application of Right 4(1)).

4. Right 4(2)

2) Every consumer has the right to have services provided that comply with legal, professional, ethical, and other relevant standards.

Right 4(2) provides a means by which standards set by other bodies can be enforced. These include:

Legal standards

Before the Code came into force there were already many health and disability service standards which were, and continue to be, regulated by statute. The Consumer Guarantees Act, the Health and Disability Services Act, the Mental Health (Compulsory Assessment and Treatment) Act and the Medicines Act are just some examples of legislation setting down standards. Other standards are specified in regulations such as Old Peoples Homes Regulations, the Obstetric Regulations and the Health (Retention of Health Information) Regulations. In addition, there are a number of Acts regulating health professional groups which provide for competence, registration and discipline. These include the Dental Act, the Medical Practitioners Act, the Nurses Act and the Pharmacy Act. A breach of any of these legal requirements can amount to a breach of Right 4(2) of the Code.

Professional and ethical standards

The Code brings together in one place and clarifies many of the professional and ethical obligations which professional groups had already imposed on their members. In addition, the Code encompasses, by reference, various other detailed standards. For instance, the Medical Association of New Zealand's Code of Ethics applies to all physicians who belong to the Association and provides a guide to ethical behaviour, responsibilities to the patient and to the profession. Similarly, the Nursing Council's Code of Conduct for Nurses and Midwives "provides a guide for the public to assess minimum standards expected, [and] for nurses and midwives to monitor their own performance and that of their colleagues". Failure to meet these standards, which the professions themselves have set, can now also lead to a breach of the Code through Right 4(2).

While Government has an important role to play in developing standards for the health and disability sector, I believe that primary responsibility for establishing and maintaining standards to ensure quality services lies with the various professional and industry groups themselves. I am encouraged to see that provider groups in several new and developing areas of practice are taking seriously their obligation to promote quality service amongst their members through the development of various codes of practice and commend this proactive approach to all provider groups.

However, together with the responsibility for developing standards comes a need to acknowledgement that standards must be enforced if they are to mean anything. Groups adopting voluntary standards should be aware that I will look to those standards in determining if a provider's obligations under the Code have been fulfilled.

Other relevant standards

The last part of Right 4(2) refers to "other relevant standards". This does not necessarily refer to a defined or fixed group of standards. My view is that if no acceptable standards can be found which relate to a particular matter, then at the very least providers should minimise risk to consumers and aim to provide the greatest benefit possible. Having said this, there are a variety of ways in which "other relevant standards" are identified and developed.

As already mentioned, if no standards are set in a particular area I may interpret Right 4(2) with reference to appropriate overseas standards. For example, when investigating Canterbury Health Ltd, in the absence of relevant standards established by Canterbury Health or the Southern Regional Health Authority, I decided it was appropriate that Canterbury Health's actions be measured against the prevailing Australasian guidelines for Accident and Emergency Departments set by the Australasian College for Emergency Medicine.

In addition, the accepted practice of other providers in the same or similar professions, both in New Zealand and overseas, may indicate the relevant standard to be adhered to. This is often the case for providers who are not formally regulated, such as counsellors, massage therapists and some psychologists, or where a provider practices a unique speciality in this country. Further, if a "professional" standard set by one group does not meet accepted standards either internationally or by reference to other health providers, I may form an opinion that "other relevant standards" are not met, even though those defined by the particular profession were met. This consumer law must continue to drive change within professional groups who through apathy or for professional protection do not continually monitor and set appropriate standards.

Finally, by forming an opinion as to what is reasonable in the circumstances of each particular case, I myself effectively set a standard. However, the Code is not, and should not be, the primary mechanism for the establishment of standards. As mentioned, responsibility for establishing and maintaining quality standards ultimately lies with provider groups themselves. These standards must be consumer focused and input is needed into their development by consumers. As general Code awareness improves and provider groups recognise that I will define applicable standards in the absence of industry based standards, I envisage greater provider responsibility for standard setting.

 

5. Right 4(3)

3) Every consumer has the right to have services provided in a manner consistent with his or her needs

It has been argued by some that Right 4(3) confers a right of access to services consistent with needs. Such an interpretation is unlikely to be upheld. The Health and Disability Commissioner Act, on which the Code is based, makes it clear that the Code applies to the quality of services actually provided. It gives no authority for the Code to extend to purchasing decisions. Furthermore, the wording of Right 4(3) itself refers to the "manner" in which services are provided, rather than the fact of provision. While initially there was some confusion over the application of the Code to purchasing criteria and funding matters, its scope now seems to be understood by most of the consumers who make a complaint.

 

6. Right 4(4)

4) Every consumer has the right to have services provided in a manner that minimises the potential harm to, and optimises the quality of life of, that consumer.  

Providers must always keep in mind the objective of providing service which optimises the consumer's independence and quality of life. This objective requires providers to take a holistic view of the needs of the consumer in order to achieve the best possible outcome in the circumstances. The Code defines the phrase "optimise the quality of life" to avoid any uncertainty as to its meaning.

If a consumer suffers any harm, physical or otherwise, as a result of the provider's actions, I may find the provider in breach of the Code. However, the Commissioner's ability to find a breach of the Code goes further, as actual harm is not a necessary element for such a finding. Right 4(4) requires that services must be provided in a manner that minimises potential harm to a consumer and optimises his or her quality of life. Therefore safety management systems which identify and manage risks must be in place.

In practice, Right 4(4) requires health and disability services to be delivered in a manner aimed at overall consumer wellness. The following extract from my Canterbury Health Ltd Report should be borne in mind by those responsible for risk management in any provider group.

"In the interests of consumers, the delivery of quality health and disability services to the public of New Zealand must include a number of key objectives:

• a prime focus at all times on the consumer
• co-operation between various agencies and providers
• openness and clarity in communication
• effective decision making
• specified standards
• a reduction in duplication of legislation to reduce wastage of health funds
• effective and efficient services
• documented policies and procedures
• clearly defined responsibilities so that public know whom to hold to account.

 

7. Right 4 (5)

3) Every consumer has the right to co-operation between providers to ensure quality and continuity of service

Right 4(5) of the Code demands co-operation between all those providing health and disability services to ensure continuity and quality. This envisages a seamless transition between providers beyond the bounds of a particular speciality or institution. Individual providers do not provide service in isolation from other parts of the sector and it is important that all those providing and supporting service delivery recognise their interdependence. My experience over the last three years has been that lack of communication between providers and the inability to look beyond one's own individual responsibility is one of the major issues in the sector today. There are several factors contributing to this which I would now like to discuss.

Effective record keeping

I cannot over-emphasise the importance of good record keeping. I have investigated several complaints where the quality and continuity of service was jeopardised because the record-keeping procedures of the providers involved were inadequate.

In one case I investigated, an on-call GP contacted after hours by a consumer suffering an asthma attack made no notes recording their conversation. This, he explained, was his usual practice. I formed the opinion that this was a breach of the Code, in that professional standards require full and accurate records to be kept. I recommended that the GP amend his procedure and record all phone consultations, noting the information given by the consumer, his advice given in response and any follow up actions required. Keeping full and accurate records in this manner ensures a more complete history of the consumer's symptoms and acts as a reminder in respect of any follow up care required.

In another case, a consumer was seen by four different GPs within one facility. A degree of continuity between the doctors was achieved through the presence of the same nurse at two of the consultations. However, one of the GPs did not have access to computerised records kept in respect of the consumer's previous consultations, which placed him in a difficult position given that the consumer was not forthcoming with information about his condition. In retrospect, that GP commented that his treatment and advice may have been quite different if he had been able to read the consumer's notes

The way in which records are kept and the information they contain is also important. If notes are hand written they must be legible, and preferably in ink. They should record all the symptoms observed and make direct reference to what was found on examining the consumer, details of any tests performed or samples sent elsewhere, as well as anything else which will assist a colleague viewing and relying on the records or the provider's own memory. The importance of including this information in patient records is illustrated by another case I investigated where a consumer attended her GP two to three times for intermittent abdominal pain in the early weeks of pregnancy. The GP made no record of the consumer's pain, the advice given to her, the fact that a urine sample had been sent to a laboratory, or the results of the urine test. When the consumer was eventually admitted to hospital after consulting a different GP, neither that doctor, nor staff at the hospital, had recourse to any records which could have indicated to them what was in fact a dangerously advanced ectopic pregnancy.

The importance of maintaining accurate records was also recently the focus of a Coroner's inquest. A hospital doctor had failed to alter a consumer's medication chart and had assumed that nursing staff would check the consumer's patient notes. In omitting to alter the medication chart, the doctor failed to establish a safety mechanism to ensure medication was correctly administered. Medication charts are intended to function as a clear and unambiguous direction to other providers of the consumer's requirements. It is essential that providers have in place - and follow - specific written protocols designed to eliminate the potential for confusion between themselves and other providers.

While these examples mainly involved general practitioners, the lessons they contain are important to providers in any field of practice.

A co-ordinated approach to care

A co-ordinated approach to care is one way to ensure that consumer safety is not compromised as a result of the involvement of several providers. The appointment of a primary caregiver whose responsibility is to oversee the consumer's treatment and liaise with other providers is essential. Effective co-ordination of services is also dependent on a summary care plan being implemented for the consumer, which the primary caregiver must overview on a regular basis. I note that almost every enquiry into mental health services (under the Mental Health Act, Coroners Act or Health and Disability Commissioner Act) has recorded problems as a result of the lack of an identified primary caregiver, summarised treatment plan, or adequate record keeping and co-ordination.

Once again, written protocols will be important if this approach is to succeed. For instance, in hospitals, rather than expecting that nursing staff will familiarise themselves with patient notes, specific guidelines must be enforced by the hospital management to ensure review of notes and charts so that mistakes and oversights cannot occur. Procedures must also be implemented to ensure that regular consultation occurs between senior nurses, GPs or specialists, and junior staff to whom tasks may be delegated.

Liaison between management and staff

Finally, it is important to recognise that co-operation also involves effective communication and liaison between management and staff within organisations. Indeed, the fact that management can now be held liable for breaches of the Code, both directly and vicariously, is one of the most significant features of this legislation. It must not be forgotten that a system is the sum of its component parts. Both individuals and management must work together to ensure that services are of an appropriate standard.

By way of example, in my Report into Canterbury Health Ltd I formed the opinion that in 1995 and 1996 the Canterbury Health Board and management did not offer the leadership that builds trust and commitment, or the common vision and purpose to inspire employees and support them. Nor did they implement the structure, together with systems for control and accountability, to ensure that responsibility was understood and exercised at all levels. This led to lack of co-operation and low morale. Canterbury Health was warned by many parties that the breakdown in relationships between management and clinicians could lead to a reduction in standards and this occurred.

As I mentioned earlier, I am able to investigate systems issues, and in a number of cases where the initial complaint was about an individual provider my finding has been that it was the system which was ultimately at fault. Conversely, complaints about an organisation, such as a hospital, have also led to a finding of a breach of the Code by individuals. The mere fact that a "system" is at fault does not absolve individuals from responsibility, firstly for ensuring that their own services meet the Code, and secondly, for ensuring that any faults in the system are brought to the attention of the appropriate authority so they can be rectified.

The following opinions (07HDC4211, 97HDC5180, 97HDC6141) provide discussion of the application of Right 4(5)).

8. Conclusion

Whenever a provider is unsure of the standards he or she must meet when providing service, it is important to return to the "grass roots" of good professional practice - quality service to consumers. This is the underlying philosophy of the Act and Code. In concluding, I would like to quote from the press release I issued at the time I made my report on Canterbury Health Limited public:

"Health is about people - individuals must not be the by-product of our health and disability sector but must always be the heart. This investigation found the prime focus was not on individuals. We must in New Zealand make an immediate commitment to build a system which recognises services are about people, for people and delivered by people. Co-operation is the key."