HPCA Bill Submission
Submission on the Health Practitioners Competence Assurance Bill
To Health Select Committee
Women's Health Action is pleased to have the opportunity to comment on the Health Professional Competence Assurance Bill. We have been aware of this bill for some time and made submissions on the discussion paper in November 2000. We have actively sought the opportunity to comment on the provisions it contains since that time and have been frustrated at the selective consultations to date. We are disappointed that there have been extensive consultations with health professional stakeholders as evidenced by specific reference to provisions in the Bill on the Medical Council website but no opportunity for consumer groups, as stakeholders, to be involved. The most obvious example of this was the debate around mandatory reporting which was held outside the public domain.
Our interest in the bill arises out of a concern for consumer issues. We have supported many complainants through various complaints processes including the Medical Council, the Medical Practitioners Disciplinary Tribunal (and its perdecessors) and the Office of the Health and Disability Commissioner. We are always struck by the disadvantages facing consumers as they engage with these processes and have many concerns about the processes, which are more often weighted in favour of the professions rather than the consumers. Most consumers do not seek financial compensation from these processes, which in the New Zealand setting are very few. However, those who do seek compensation should be given every opportunity to do so . Few complainants seek revenge or retribution. The majority of consumers want to see wrongs righted, systems changed to prevent reoccurrences and professionals taking responsibility for their actions.
Women's Health Action has had a long-standing interest in issues relating to the practice, standards and discipline of health professionals. The Health and Disability Commissioner's Office arose out of the Cartwright Inquiry. . WHA advocated for such an office in closing submissions at the Inquiry and Judge Dame Cartwright included this in her recommendations. During that Inquiry we raised issues of medical discipline and later made submissions on the Medical Practitioners Bill. We were disappointed that the existence of the HDC Act allowed doctors to successfully argue that as the HDC Office was consumer focussed, they should retain control of the medical disciplinary system.
Disciplinary procedures need to be seen within the context of the restricted range of avenues for redress for consumers. Accident compensation offers some (largely inadequate) financial compensation but does not protect the public from errant practitioners, nor punish practitioners who are negligent. ACC also limits the ability for the consumer to sue. Consequently consumers look to disciplinary procedures to protect the public and to punish negligent practitioners. However, the system rarely delivers this, and recent high profile cases ( Fahey , Parry and Bottrill) have delivered outcomes only after extensive publicity and blatant evidence of harm.
An inbuilt tension exists between the need of health professionals to establish and maintain professional standards and the reputation of their professions, and the public need for protection and redress. We believe the focus of this bill is on the former and that this is reflected in the power given to professional bodies when investigating complaints to determine the people involved and control the processes. We believe that the right and proper role of professional bodies is to set standards and foster competence but we believe these functions should be separated from investigation of complaints and disciplinary issues.
This bill has emerged with a background of an ongoing debate amongst health professionals on the level of adverse events in the New Zealand health system and the best ways to ensure quality health care. The focus of this debate is around professional self-regulation and the provision of safe environments in which professionals can assess competence and review practice. Safest environments are seen as those where there is " no shame and no blame." This debate is professional/provider driven and creates the impression that health professionals labour under the constant threat of consumer complaint and disciplinary action. It also assumes that consumers seek revenge or retribution at every opportunity. The implications are that this approach creates an environment which threatens rather than enhances consumer safety in clinical settings. The reality for consumers in the current environment is rather different as evidenced by the following from the Health and Disability Commissioner Annual Report 2003 under the heading " Learning, not Lynching"
It is perplexing that providers especially doctors and nurses continue to speak out about the "name, blame and shame" medico-legal environment in New Zealand, when the only official inquiry processes that identify providers under scrutiny are Coroners' inquests and disciplinary proceedings.
If professional bodies are given control of investigation of complaints and disciplinary issues, the process does not work for consumers who emerge feeling abused, intimidated and powerless against the health professions. We believe that complainants are not merely witnesses whose experience forms part of a process which informs the professions or improves the health sector. Complainants are injured citizens who deserve the right to seek redress themselves, or be given the opportunity to have their concerns addressed on their behalf by an independent authority.
They need support, access to information and validation. They need to be confident that the system is fair and independent and that their concerns will be heard without prejudice. They need their own autonomy restored. The concept of restorative justice is central to the need s of injured health consumers. This is difficult to achieve in a system dominated by the professions.
Women's Health Action has always argued that regulation of professional matters by professional groups should be kept separate from avenues for consumers to take complaints. This was to some degree achieved by the Health Commissioner Act which currently investigates complaints from consumers about all health professionals. The Health & Disability Commissioner (HDC) has a number of actions available, including referring serious complaints to the Director of Proceedings who can then prosecute complaints to professional disciplinary bodies or to the Human Rights Review Tribunal. The HDC can also inform health professional bodies of concerns about a health professional's competence. The HPCA Bill takes us backwards to empower professional self-regulation at the expense of health consumers' rights.
Key Aims of the Bill and Government Objectives - General Statement
The Bill states that its key aim is to protect the public from the risk of harm from the practice of the health professions and that it seeks to ensure consistent procedures across the professions for handling complaints. Although the title of the Bill conveys that the Bill is about the competence of health practitioners, it is much more than that. The Bill provides clearer provisions for monitoring health practitioner competence, but it also radically changes the mechanisms available for consumers to complain about a variety of health practitioners doctors, nurses, physiotherapists, dentists, midwives and so on.
WHA supports the aim of assuring the public that registered practitioners are competent to practise.
To this end, WHA supports the following aspects of the bill:
- the establishment of authorities and the functions outlined in Section 114 a-e and i-l
- the establishment of one disciplinary tribunal for all health practitioners
- the provision for quality assurance activities
We agree that it is necessary to create a supportive environment in which health practitioners can practice, maintain their competence throughout their careers, and learn from their experiences and the experiences of their colleagues. We do not believe that it should create a protected environment where public concerns and consumer complaints serve only to inform the profession. There needs to be transparency for consumers and potential users of the system who need reassurance that harmful medical practice and practitioners causing harm are dealt with appropriately.
WHA agrees with the following statements from the Health and Disability Commissioner :
" the New Zealand Medical Association and the Association of Salaried Medical Specialists have campaigned publicly for renewed emphasis on medical professionalism and less focus on external accountability measures. External regulation through health professional statutes and the Code needs to complement , but can never supplant, the central role of self-regulation and peer review. One aspect of professionalism, however, is surely recognition of one's ethical responsibilities as a health professional, and of the over-riding obligation to ensure the safety of patients (and the public).
The Bill states that it is committed to improving the processes for complaints against health practitioners to ensure they are resolved expeditiously and fairly with adequate communication between the various government agencies involved.
To do this, the government states that the bill will "provide consistent, co-ordinated, fair, and transparent processes for handling complaints against health practitioners." We do not believe that the provisions of the bill meet these criteria. It is not sufficient to proscribe consistent processes across the professions when the control for the processes is so firmly invested within those professions.
In summary we believe the HPCA Bill:
- Muddles the functions of addressing consumer complaints and the need for health professionals to maintain professional standards and discipline, to the detriment of consumers' rights.
- Changes the primary focus of the complaints process from one that is consumer centred, to one that is medically and professionally focussed.
- Limits consumer voice, choice and rights in the process.
- Aims to use consumer complaints to improve health practitioners' competence, but at the expense of the consumers' need to have redress and resolution.
- Reduces the HDC to a post-box for complaints which may then be referred back to health practitioner bodies or providers.
Changes the focus from patient/consumer rights to medical/professional standards and competence.
- Complaints are used to ensure competence of health practitioners but the Bill fails to offer satisfactory resolution and redress for complainants.
- Domination by health professionals throughout all bodies and processes
- Complaints Investigations Committees are under the aegis of the practitioner bodies and all members, including lay members, are appointed by them.
- CICs not only investigate complaints but have wide powers to suggest remedies and ongoing action. These range from a decision to do nothing to levels of censure and a determination to take the complaint to the Tribunal.
- Fines for breaches are very low.
Removes consumer voice, choice and rights from the process.
- In every case (authorities, CICs, tribunals etc) consumer representation is in the minority and can be over-ruled by professionals.
- Consumers have little control over what happens to their complaint once it is lodged. Within the proposed HDC system, there is some provision for the complainant to be consulted but no statutory requirement for this or for their wishes to be considered. A ' like it or lump it' philosophy prevails.
- If the complaint is referred outside of the HDC system, there is no oversight of the progress of the complaint and its outcomes
- Often the process involves a deliberation by groups dominated by professionals who then inform the consumer/complainant about the result with little provision for input or appeal. For example: destination of original referred complaint, CIC process and deliberations, tribunal deliberations
- No provision for compensation for consumers.
Comments on Specific Aspects of the Bill
Part 1: Preliminary and key provisions
Interpretations in Section 5(1-3)
Former health practitioner we support the inclusion of former health practitioner and its extension to Parts 4 and 5 of the bill
Layperson We are opposed to the broad definition of layperson which excludes only current health professionals. Our experience is that the definition of 'lay' people is very widely interpreted by those who do the choosing. Lay people chosen have ranged from former health professionals to people with no governance experience and with no background in health. Very few are linked into consumer networks so that they have no support networks and no community to which they are accountable. We believe that 'layperson' should be replaced by 'consumer representative' being people who are knowledgable, experienced and are nominated by and/or have the support of recognised consumer groups.
Clause 8 (3) Exceptions:
WHA supports the exception for emergency treatment.
Exceptions granted as part of a course of training or instruction need to ensure that the scope of practice is within that proscribed for the trainers or instructors. This allows for the protection of trainees/students but also ensures an appropriate allocation of responsibility.
Clause 9: Restricted activities
We believe this is an important provision but would like some clarification as to the extent and nature of restricted activities.
Part 2: Registration of, and practising certificates for, health practitioners
Clause 10 Scopes of Practice
This clause allows the authority to specify a scope of practice in any way it sees fit. We are concerned at the flexibility proposed and see it as important that there are clear understandings of exactly what practitioners are qualified and registered to do and what is required for registration to be achieved. We do not believe scopes of practice should be unnecessarily prescriptive. An example of our concerns is the recent proliferation of appearance medicine (specifically Botox and dermal fillers) amongst GPs and sometimes their nurses.
Scopes of Practice should apply to specialty areas within a profession and a clear case made for the necessity of this. Recently 5 breast physicians achieved vocational status under the MPA despite their limited numbers and the lack of any evidence that such a move was in the public interest. There was no opportunity for public input into this process despite implications for consumers.There needs to be formalised opportunity for public input into any plans to extend or significantly change the scope of practice for a registered health professional grouping. Consumer organisations need the opportunity to consider what is proposed and comment on potential implications for consumers.
Clause 13- WHA supports Clause 13(2) which provides for up-to-date versions of information relating to scopes of practice to be available. This should be extended to notifications of proposed changes to scopes of practice with an opportunity for input.
Clause 15: Fitness for Registration
Fitness for registration should include the ability to work effectively within the cultural/social context of Aotearoa/New Zealand.
Clause 16(2b)new clause iii: Conscience Issues
Statements in relation to conscience issues eg, pregnancy termination, genetic screening - where the practitioner has personal beliefs which preclude some treatment options. Section 11 of the Medical Practitioners Act 1995 deals with matters in respect to family planning and ensures that there is a legal obligation to refer on. We believe that there are a number of issues where health practitioners need to state positions on such conscience based restrictions on their scopes of practice. A clear statement on the issues as part of the registration process needs to be carried through into publicly available consumer information.
Clause 17 We believe that if the Tribunal has attached conditions to re-registration then the authority needs to ensure that the Tribunal is satisfied that the conditions imposed have been met.
Clause 18.4b that the applicant has a reasonable ability to communicate effectively and comprehend English.
Clause 30(2) Interim Practising certificates There is the provision for these to go on being renewed in perpetuity. We believe an upper limit would be helpful.
Part 3: Competence, fitness to practise and quality assurance
Clause 33: Reporting that practice is below the required standard
WHA is disappointed that the debate on mandatory reporting was taken out of public arena. While consultations were had with health professionals the debate did not include consumers and the public. This was particularly surprising given that the majority (nearly 90%) of submissions on the discussion paper supported mandatory reporting of practitioners believed to be suffering a medical or physical condition and 80% supported mandatory reporting of practitioners believed to be practising below an acceptable standard. However, WHA had particular concerns that early drafts of the Bill ( unseen by us) only required health professionals to report others in the same professional group. There also needed to be debate about reporting between professions as nurses, for instance, are often in a position to observe unsafe practice.
We support the following comment from Ron Paterson on the stand taken on this issue by the New Zealand Medical Association and the Association of Salaried Medical Professionals:
"It is disappointing to note resistance to proposed mandatory reporting to registration bodies of concerns about a health professional's competence (the so-called 'dob-a-doc' proposal) without any acknowledgement that doctors currently have a legal and ethical responsibility to 'protect-a-patient' by notifying an appropriate authority, if genuinely concerned."
We are pleased to see that the provision for reporting remains in that health professionals are permitted and protected if they choose to report on others they believe may pose a risk of harm to the public, and that this provision is not limited to reports within professional groups, but across them as well. Our experience is that health professionals are often the first to notice practice below the required standard but are often very reluctant to deal with the issue. We have dealt with cases where health professionals have encouraged consumers to take up competence issues rather than address the issue themselves.
The current MPA makes it difficult to act promptly in situations where health practitioners appear unfit or incompetent but are not ill. We believe there should be an ability to suspend or impose restrictions on any practitioner who poses a potential danger to the public for any reason. This needs to be coupled with a mechanism to deal with urgent and critical issues of safety at short notice.
We believe that there need to be clear criteria for the presence of bad faith and penalties for frivolous reporting.
Clause 34(1) There is no provision to notify the health professional concerned and no requirement for the authority to justify its belief that the health professional is at risk of harming the public.
Clause 35: Competence Reviews
WHA supports the role of the authority in conducting competence reviews. We are concerned, however, that there is no mechanism which allows consumer complaints to trigger the provisions in this section, except through the Health and Disability Commission process. We believe there is a need a one-stop-shop system for reporting complaints that can be used to trigger investigations or competence reviews eg persistent complaints from a variety of complainants about a particular service or health professional.
Clauses 35-40 : WHA wholeheartedly endorses and supports mechanisms for improving the competence of health practitioners competence reviews, competence programmes, recertification programmes, and medical examinations.
Clause 42(4,5):There needs to be a mechanism for dealing with persistent failure to meet requirements for competence or recertification programmes. Consideration should also be given to notifying consumers if these affect practice and standards of care.
Clause 43 Confidentiality of Information
There are instances where consumers need to know that a competence review has been undertaken and informed of the outcomes and implications for them. The review accesses their clinical records and where issues identified relate to their care or condition, there is a duty to inform them.
(1c) ii It is unclear who the person is requesting access to the information. Is the person concerned the health practitioner or the patient whose clinical information forms part of the review? And if it is the patient, how are they to know that there is information to be requested?
Clause 43(4b) If the competence review exposes serious competence issues there needs to be provision for consumer redress or for the issue to be dealt with as a disciplinary matter. Evidence may need to be made available to the HDC and ACC.
Clauses 48 and 49 there needs to be a mechanism for informing patients/potential patients that restrictions have been imposed/revoked
Quality assurance activities
WHA supports quality assurance activities and strongly endorses the ongoing analysis of clinical practice and procedures with peer discussion of the issues raised. We accept that they perform a useful role in a lifelong learning process. The results impact positively on consumers who benefit from informed practice and practitioners.
A clear unequivocal definition of Quality Assurance activities needs to be included in the Act so that there is no ability to disguise other activities that are more properly investigations or research as quality assurance. QA activities are routine monitoring, assessment and audit of services carried out to ensure those services are of good quality and achieving the objectives of the service. QA activities should be regularly carried out at planned intervals and the results used to improve services. It should be part of all contracts involving public funds that practitioners are required to take part in such activities and provide all information that is needed. We accept that such QA activities should provide protection to individual practitioners but not if significant or even moderately serious errors are disclosed. However, the outcomes of such QA activities should be public information as the public has a right to know about the quality of the services paid for with public monies..
QA activities are not those prompted by an incident, suspicion of poor performance (of an individual or service), adverse event investigations and so on. The public has voiced strong opinions against conducting such reviews in secret. The public interest is served by making the findings of these public and also enabling public participation wherever desirable.
Individual consumers' rights (and those of their families) must be preserved, including the right to access to all information relating to that person and the right to take actions based on that information.
QA cannot become a mechanism used to protect poor quality health practice or incompetent practitioners. Our particular concern is the protection of the confidentiality of information that becomes known as a result of the activities and, to a lesser extent, the immunity from civil liability of participants. We believe that there must be a public interest clause which allows serious issues raised to be appropriately addressed. We would see it as a provision which is rarely used but provides a safeguard in cases of obvious negligence. Consumers harmed by poor practice, revealed as a result of these activities, also have a right to know and to be offered opportunities for correction and compensation.
New Zealand medical practitioners argue that confidentiality and immunity are necessary to create safe environments for them to disclose and cite fears of litigation and liability. They reinforce this 'fear' by refusing to provide clinical practice information from time to time and have done so (or threatened to do so) with the Cervical Cancer Screening Audit and with the Maternal Deaths and Anaesthetic Assessment Committees. This is despite the fact that we are not aware of any audit or quality assurance activity which has resulted in disciplinary action and the public hanging out to dry of a doctor or doctors. Almost without exception, doctors are brought to justice as a result of patient action based on information the patient has had to painfully put together - generally by patient/s with strong evidence of irrefutable harm and after an arduous journey through the medical complaints system. (cf Parry, Bottrill et al) It is our belief that the public is forgiving and has a reasonable tolerance for human frailty. It is losing patience, however, with a paranoid and protective medical fraternity.
Clause 51 (1)Interpretations
WHA strongly endorses the exclusion of specific significant incidents from quality assurance activities and the definition of specific significant incident. It is important that adverse events stand investigation in their own right and do not become subject to the provisions of these sections. The damage to public confidence would be enormous if every adverse event and near miss becomes a protected activity.
Clause 53 WHA support the possibility of appointing more than one person. This would allow for the appointment of person with knowledge of health matters and a consumer representative
Clauses 55-59 Reporting Requirements, Confidentiality of Information
WHA believes there are instances where consumers need to know that a quality assurance activity has been undertaken and informed of the outcomes and implications. This information needs to be made publicly available and there is a duty to inform the public if serious public safety issues are raised. We are concerned about whether the exceptions in Clause 57 and 58 are enough and about the implications of conduct engaged in good faith in Section 59?
Part 4: Complaints and discipline
General Comments and an alternative:
Complaints Investigation Committees: The 15 authorities can accept complaints from the Health Commissioner and then must refer them to its own Complaints Investigation Committee (CIC). Each CIC has 2 health practitioners and 1 lay person appointed to a particular case by the registration authority. The CICs not only screen complaints (as occurs with the current Complaints Assessment Committees), they investigate them, and then decide whether to do nothing, refer the complaint for conciliation, or lay a charge to the new Health Practitioners Disciplinary Tribunal. A CIC can also immediately notify the registration authority if it believes the practitioner poses a risk to the public.
WHA does not believe that the establishment by each authority of Complaints Investigation Committees meets the government objective for " improving the processes for complaints against health practitioners to ensure they are resolved expeditiously and fairly with adequate communication between the various agencies involved." Neither do they provide conditions conducive to meeting consumer expectations for clarity, consistency, transparency, fairness, and independence. We note that eighty-one percent of submissions to the discussion paper supported separation between registration and disciplinary functions and the discussion paper states " separation would avoid any conflict of interest and ensure public and professional confidence with a transparent process."
Professional bodies have a vested interest in protecting the reputation of the profession from harm often at the expense of complainants. The Police Complaints Authority and Medical Council Complaint Assessment Committees are often cited by the public as examples of this.
This arrangement gives the CICs huge powers. There is no appeal against their decisions from either complainants or health practitioners. If the CIC takes no action, or lays a low level of charge, there is nothing the complainant can do.
Role of Complaints Investigations Committees
- WHA fundamentally disagrees with the concept of CICs as an appropriate mechanism based on experience of CACs (Complaints Assessment Committees) within existing disciplinary processes.
- The use of Complaints Assessment Committees has served to prolong and confuse the process.
- These committees have a reputation for preventing cases from proceeding to the Tribunal. For example in 1999/00 the CACs referred only seven cases to the Medical Practitioners Disciplinary Tribunal (MPDT).
- In 2001/2002, 127 determinations were made by CACs. Of these 74 (58%) resulted in no further action, 13 (10%) were withdrawn, 22 (17%) resulted in a charge being laid with the MPDT, 16 (12.5%) were referred for competence reviews, and 2 (1.5%) were referred to conciliation.
- During 2001/2002 there were 10 MPDT hearing outcomes none was found guilty of disgraceful conduct, one was found guilty of professional misconduct, 4 of conduct unbecoming, four were found not guilty and 2 were stayed.
- There has been difficulty establishing CACs because of an unwillingness of doctors to serve on them. This has caused delays and a lack of experience and expertise amongst CAC members.
- CICs act as gate keepers for professionals and are difficult for consumers to access easily and with success
- CICs are under the control of professional bodies so are not independent. All members are appointed by the professional body from its membership including the lay member and the Chair.
- Have greater powers than current CACs but without clear terms of reference, rules of conduct they can regulate own procedures as they think fit
- CICs may hear evidence from four sources the health practitioner, their employer and associates (none of whom on past experience has shown a great willingness to be objective and all of whom have conflicting interests) and the complainant. The possibility exists that if the professionals do a good enough job supporting a colleague, the CIC may have decided the issue before hearing from the complainant. While there is a requirement that the complainant and the health practitioner must ' each have been given a reasonable opportunity to make written submissions and be heard on the matter, either personally or by a representative.
- CIC determinations are made without reference to the wishes of the consumer/complainant who may have strong objections to some courses of action eg referral for conciliation or the appropriateness of the formulated charge.
- CICs are required to run conciliation processes without any consideration of their ability to do this and the appropriateness of them doing so.
- There is no ability to appeal decisions or processes. There are also no criteria around what is appropriate for conciliation or any other penalties. Worryingly, the decision not to act at all also requires only that the complainant is notified of this with the committee's reasons. The process for making determinations is completely discretionary for the CIC.
- This Bill preserves the worst aspects of the existing Medical Practitioners Act.
- That the existence of parallel systems across a number of professions will lead to inconsistencies in application.
- Specialist skills are needed to properly execute some CIC functions and duties but the opportunity to gain these will be minimal.
- Duplication of similar service across a number of health practitioner areas is an unnecessary waste of scarce resources
WHA believes that the disciplinary investigations need to be taken out of the professionally based authorities and put into an augmented HDC.There are a number of changes that we would advocate for this Bill to provide more choice and control for consumers over what happens to their complaints, but the principal change is to remove the Complaints Investigations Committees from the practitioner bodies and place all complaints investigation in an augmented division of the Office of the Health and Disability Commissioner. This would reorient the Bill to a more consumer-centred approach.
Locating complaints* investigation within the office of the HDC allows:
- A 'one-stop shop' for complaints as advocated by the Cull Report
- Professional input but a healthy distance from professional bias and ownership.
- A primary consumer focus.
- A consistent approach across professions.
- The opportunity to develop specialist skills in the area of complaints investigation across a range of settings involving different health practitioners.
- A single public prosecutor (Director of Proceedings) for all complaints involving health consumers, further reinforcing the 'one-stop shop' concept and the benefit of developing a centre of expertise
- Efficient use of resources.
*Complaints involving such things as fraud and criminal offences by health practitioners not related to patient care would still go directly to health professional bodies.
Women's Health Action Trust believes that a system based in the HDC is more likely to be perceived by the public as fair and transparent, that it will be cheaper than professionally based systems and that it will be able to develop a high level of skill and expertise.
We have sounded out this idea with Ron Paterson the current Health Commissioner and he is warm to the idea. What this system would need is to be well-resourced. This would mean redirecting resources that would go into the CICs into the Office of the HDC.
Comments on the Bill as it stands
CIC's need to include equal numbers of consumer representatives and professionals. We would like to see a pool of consumer representatives created by regularly calling for nominations to a consumer health forum from community and consumer groups. Once selected, these people could be provided with training and support, and would then be available for appointment to CICs. A consumer health forum would provide the opportunity for sharing experience, providing peer support and a platform for raising general issues from the forum. Consumer Health Forum members are more likely to be perceived as independent and would have the opportunity to gain experience across a range of health professional areas.
Amend Clause 68
(1) ., a complaints investigation committee consisting of-
- 2 health practitioners, one of whom may be registered with the authority ; and
- 2 consumer representatives
We do not support the appointment of consumer representatives who are members of the authority and believe that the Chair should be independent
Clause 69: WHA would prefer a clearer definition of the rules and procedures guiding the work of complaints investigation committees.
Clause 71: Both practitioner and complainant need details of the particulars of the matter While a complaint may form the basis for the formation of a CIC, it may not necessarily form "the particulars of the matter" We also believe that it would be helpful to provide background information on the intended members of the CICs. A list of names is often meaningless.
Clause 73: This section significantly disempowers the complainant as it is heavily weighted with information from health professionals and, while allowing for a support person, specifically excludes them from being heard unless they are otherwise entitled to participate. In many situations, there are people the complainant may want to be there specifically because they have something useful to contribute . This may be in a legal or support capacity but equally they could be family members with information from their perspective, or people who are better able to speak for the complainant on issues relating to the complaint and the circumstances of the case.
Clause 77: WHA believes that there should be provision for feedback from the complainant and health practitioner on the likely recommendations and determinations.
Clause 79: WHA believes that this clause confuses low level resolution and conciliation. It must be clear that all parties consider the complaint to be successfully resolved by agreement, not just the Committee. The complainant, in particular, must be satisfied with the conciliation process and its outcomes.
Health Practitioners Disciplinary Tribunal: The tribunal is a single body with a lawyer chair and a panel of 4 members drawn from a pool for each case. The panel for a particular case would comprise 2 health practitioners of the same profession as the person charged, and 2 laypersons. The tribunal has powers to discipline practitioners and impose penalties, including a fine of up to $30,000. Only the health practitioner can appeal its decisions. The tribunal cannot award compensation to complainants.
Clause 83: Panel
WHA believes that members of the panel should be appointed by the Minister after nomination by stakeholders. This would allow for panel members who have the confidence of their professional colleagues.
Laypeople should be replaced with consumer representatives nominated by consumer and community groups.
Section 88: The provisions around notification need to extend to the complainant who should be invited to attend, informed as to whether they are required as a witness and offered the opportunity to be heard.
Section 93: We support the provision of special protection for certain witnesses and particularly Clause 93(5) which allows the witness to give sensitive evidence without the health practitioner being present.
Section 95 (4):While we understand the need for this section, we feel that acting honestly and in good faith should not necessarily be a defence against disciplinary action. A consideration of whether the practice or theory of medicine being engaged in was safe to pursue and the need to demonstrate that adequate precautions were taken to monitor patient safety are also needed. This defence would have protected those involved in the cervical cancer inquiry.
Section 96: The tribunal should also be able to award costs and compensation to complainants, who should have first call on funds recovered under Section 100.
Part 5: Appeals
Currently only health practitioners have the ability to appeal.
Consideration needs to be made for complainants to access to appeal provisions.
We believe that there are so few avenues for appeal open to consumers that complainants should retain the right to take cases to the Human Rights Tribunal irrespective of the outcomes in other fora.
Part 6: Structures and Administration
Clause 144: WHA believes that the disciplinary investigations need to be taken out of the professionally based authorities and put into an augmented HDC. This would mean the removal of subsections f and h.
Clause 116(2) WHA believes that laypersons need to be replaced by consumer representatives.
Clauses 119 -122: We support provision for Ministerial requests for information, audit and review of authorities
Clause 146: We support provisions for public access to information contained on registers.
Part 8: Amendments to the Health and Disability Commissioner Act 1994
The role of the Health Commissioner is significantly altered by the Bill. When the HDC gets a complaint, he or she can refer the complaint to a health practitioner registration body, the health or disability service provider complained about, or ACC. C