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Under Investigation

Presentation to AON Healthcare Risk Management Conference
9 August 2000

Ron Paterson
Health and Disability Commissioner

Background - An Act with attitude

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. This was done by authorising the creation of a Code of Rights and providing suitable mechanisms of enforcement. This, then, is an Act with attitude. The emphasis is on the promotion and protection of health and disability services consumers. 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. Parliament knew this as well as we do. It endeavoured to strike a balance between the rights of consumers and providers in the complaint investigation and resolution process. Like a new shoe the Act is felt by some providers (and their risk managers and lawyers) to pinch a little; to impinge on their professional and personal liberties and interests.

Purposes and processes

The overarching purposes of the HDC Act are set out in the long title: "to promote and protect the rights of health and disability services consumers". Particular mention is made there of securing "the fair, simple, speedy, and efficient resolution of complaints relating to infringement of ?[Code] rights". Section 6 goes a little further than the long title:

"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 disputes relating to infringements of those rights".

In other words, the dispute resolution process serves the ends of promotion and protection of health consumers' rights.

Literally, that could be read to mean efficiency, speed, simplicity and fairness only as far as the consumer is concerned. That is negated by later provisions, which ensure basic fair procedures for both consumer and provider. Fairness" is a two-way street.

Investigation process

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. If the complaint is notified in a letter from the HDC, the respondent may be gripped by fears of the potential consequences of the complaint, and uncertainty about the process of investigation to be endured.

Providers often bemoan the fact that New Zealand has a Code of Consumers' Rights, yet there is no correlative Code of Consumers' Responsibilities. In practice, however, a provider's ability to provide quality care will necessarily depend on a consumer's willingness to share personal information, and to comply with an agreed treatment regime. As noted above, it is a good defence for a provider alleged to have breached the Code to show that he or she took "reasonable actions in the circumstances". If a provider was 'playing with a half deck of cards' , that will certainly be a "relevant circumstance" in any subsequent complaint investigation.

Whatever the consumer's responsibilities, it is clear in law that a provider facing an HDC investigation does have rights. The statute spells out specific requirements for the Commissioner to act fairly in the course of an investigation.

Providers 'under investigation' must be told what is being investigated, and given an opportunity to respond. Section 41 states that the provider must be informed of the intention to investigate, the "details of the complaint" (or the "subject-matter of the investigation", if it has been commenced on the Commissioner's own initiative) and the right to submit a written response within a reasonable time.

In practice, providers are almost invariably sent a copy of any written complaint, although it may sometimes be sensible to edit inflammatory material ("the doctor had bad breath"!) that is irrelevant to the matter under investigation. The notification letter will set out the key facts that have been alleged ("on x date you failed to do y") and, in my view, should indicate the broad legal issues relevant under the Code ("whether you failed to provide care of an appropriate standard"). However requiring the level of factual and legal specificity expected in disciplinary or criminal charges would not be appropriate for investigations of possible breaches of the Code. Parliament clearly intended a simpler process.

The HDC investigation notification letter invites the provider to make a written response within 21 days. It is a good idea to contact a defence representative or (in an institutional setting) a risk manager at that stage. However, a legalistic response is unnecessary and may be unhelpful. What is important is that providers set out, in a straightforward way, their recollection of what occurred. If the consumer was difficult or other circumstances affected the episode of care, that should be noted. A provider who cannot recall specifically what was said, but is able to point to an invariable practice in such consultations, should explain what that is. Obviously if a practice nurse or colleague witnessed the events, their contact details should be given. Providers should also forward copies of all relevant documentation, including clinical records for that patient, and respond promptly to HDC requests for such information. What is not helpful to an investigation, or to the presentation of a credible explanation, is to send a letter in which the provider rants and raves at the unfairness of the complaint and the investigation. Those protestations should be saved for a confidant. The HDC is not a court of law, and evidence is rarely heard on oath and is not subject to cross-examination, but a clear, factual statement of the provider's dealings with the consumer will go a long way to establishing what really happened and assist a speedy resolution.

It is likely that the HDC investigator assigned to the case will telephone the provider to clarify any points that remain in issue. I have asked staff to ensure all parties are also contacted on a monthly basis (or bi-monthly in the case of a public hospital) and informed about progress on the investigation. After the initial fact gathering stage, the HDC's usual next step is to request independent advice from a peer. The selection process for advisors used by the Commissioner, and their names, have been shrouded in mystery. I have written to the statutory registration bodies and Colleges seeking a panel of experts available to give advice within the various specialities. I propose that the list be published, but that the name of the advisor on a particular case remains confidential. I believe that fairness dictates that the list be open to scrutiny, but that disclosure of the actual advisor is not required, and may preclude my obtaining similar advice in the future.

Ultimately, it is for the Commissioner to form an opinion, on the basis of expert advice where necessary (and it will almost invariably be needed in cases involving standards), whether a consumer's rights have been breached. All relevant parts of the expert advice will be included in the HDC opinion. In the event of a provisional breach opinion, the provider is entitled to a "reasonable opportunity" to respond and, if requested, the HDC must append the written response, or a fair and accurate summary thereof, to the final report. Current practice is to send a covering letter with the provisional breach opinion inviting comment on the findings and recommendations, usually within 10 working days of receipt.

A provider's response to provisional findings and recommendations is carefully considered, and it is not uncommon for the final report to be amended accordingly. The final report will then be sent to the parties (complainant and provider) and to the appropriate health professional body. Once any recommendations have been met, the file will be closed. More serious cases may be referred to the Director of Proceedings for disciplinary or Complaints Review Tribunal proceedings, or (in the case of doctors) to the Medical Council for a competence review.

No-one enjoys being subject to a complaint, but they are a fact of modern professional life. Providers who have been investigated by the HDC may read this article and reflect that their complaint was not fairly or speedily resolved. My pledge for the future is that, although the findings of an investigation may be adverse, the process will be fair and expeditious. Having peaked at over 1000 in May 1999, the total 'open' complaints files, as at 31 July 2000, was 581. While is unrealistic to imagine that there will not always be a substantial number of files at various stages of investigation (hopefully fewer than 500), more work remains to be done to reduce the average length of time to close a file below the current figure of 44 weeks. My aim is to get that figure down to 26 weeks. Completion of a number of complex files in the backlog from 1997/98 is a first priority.

The Act attempts to strike a balance in the investigation and resolution of complaints - juggling fairness, simplicity, speed and efficiency. Maintaining all those balls in the air - without dropping any - is, of course, the trick.

The Commissioner's watchdog role

Although the Commissioner's complaints investigation function looms large in practice (at times one feels like the captain of a 'leaky boat', as the complaints keep coming in), the educational role is in my view even more important. The Commissioner is New Zealand's only independent statutory watchdog charged with speaking out on matters related to the rights of health and disability consumers. Complaints investigation is but one of the Commissioner's 16 statutory functions. I do intend to "make public statements" on general matters related to consumers' rights, to promote awareness of their rights "by education and publicity", and to "report to the Minister on the need for, or desirability of, legislative, administrative or other action to give protection or better protection" to those rights (section 14(1)).

Although I hope to keep out of the media spotlight on complaints involving individual provider (where the Commissioner effectively acts as a gatekeeper to other legal processes), in the case of institutional providers it may be necessary to make public my concerns about patient safety and quality of care. In relation to public and private hospitals, community care facilities, and rest homes, where vulnerable consumers receive care, the Commissioner has a duty to 'blow the whistle' and call the relevant authorities to account in serious cases. There is increasing awareness of the extent of adverse events suffered by hospital patients in New Zealand, and calls for quality assurance activities that seek to remedy 's ystems errors' and avoid a culture of blaming individual providers. While I generally support that approach, the corollary is that systems must be held to account. I accept the responsibility to bark loudly on occasion.