• 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

• 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.

• 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.

• 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

We believe:

Our solution

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:

*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

Clause 68:

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-

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

Registration authorities:

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

^ Top

Previous page: Health Consumer Complaints
Next page: Cartwright