New disciplinary system unveiled

The Medical Practitioners Bill was introduced into Parliament in late November. The bill has been a long time coming. At the Cervical Cancer Inquiry back in 1987 the Medical Council said that it was working on revisions. Consultation with consumer groups was promised, but little of this occurred.

The bill was hailed in the House as a great step forward for medical accountability and it has bipartisan support. However, a careful reading shows the bill does not fulfil this promise. Medical power is carefully preserved at every level despite the somewhat increased lay participation.

So what does the bill say?

Complaints against doctors

These go first to a complaints assessment committee contsisting of two doctors, and one member who is non-medical. The members are appointed by the president of the Medical Council who is a doctor. He or she also elects the chair for the committee. (Section 85)

The doctor who is complained about can request that any intended members of the committee not be appointed. It is then up to the president to decide what to do. (Section 87)

The committee decides whether to pursue a complaint, and if so, whether there should be conciliation, whether the case should be heard, or whether the Medical Council should review the competence of the doctor to practice medicine. (Section 88)

This committee can frame charges to go before a Medical Practitioners Disciplinary Tribunal. It can also recommend interim suspension, (Section 90) as can the Tribunal itself. (Section 99)

The Tribunal is the body which hears complaints about doctors. It consists of a chair and deputy chair, both of who must be doctors, and four other persons, two of whom shall be doctors, and two who are lay people. Members are picked by the chair from a panel appointed by the Minister of Health. The chair and deputy are also appointed by the Minister. (Section 93)

Decisions are made by majority vote. (Section 95) This means the non-medical members can always be outvoted.

Charges may also be brought to the Tribunal by the Director of Proceedings, a position established under the Health Commissioner legislation.

Hearings of the Tribunal are to be held in public, except that the Tribunal can decide to go into committee at any time. (Section 101) If the charge relates to matters of a sexual, intimate or distressing nature the complainant's oral evidence is given in a closed session. (Section 102) It is not clear who makes this decision. If the hearing is closed, the press may be present, and the complainant can nominate other persons she or he wishes to be present.

The Tribunal can remove a doctor's name from the register, suspend him or her, set conditions for practice, censure, order a fine and/or costs. The maximum fine is $1O,OOO. (Section 105) Contrast this with a recent fine of over $4O,OOO imposed on lawyer Christopher Harder by the Law Society for unacceptable behaviour in court.

Results of tribunal hearings may be published in the New Zealand Medical Journal. As the news media can be present, the proceedings can be published. It is not clear what protections there are on complainants' names being published.

Medical Council

The third body is a Medical Council, consisting of the Director-General of Health, one member of the academic staff of a medical school, four doctors elected by the medical professional, and four people to be elected by the Minister, one of whom can be a doctor. The council's functions are now to do with practising certificates, competence of doctors, and medical education.

Other parts of the legislation require doctors to be vocationally registered before they can practice independently. This would prevent GPs, for example, setting themselves up as surgeons. The bill ensures that information about a doctor gathered as part of a quality assurance programme is confidential and cannot be used in any civil or criminal proceedings. The President of the Council has the power to suspend a doctor for 10 days to protect the public.

The disciplinary system proposed in the bill is complex and heavily weighted towards professional interests. Although Jenny Shipley said the system was designed to avoid delays and build public credibility, it is hard to see how this will be achieved. Non-medical people have been given only token roles in the structures; while all the most powerful roles are reserved for doctors.

The system is quite cumbersome, and the interface with the Health Commissioner unclear. Complaints can pass from one jurisdiction to another at various stages. At many points someone has to make a decision about whether and how a complaint will proceed. There is considerable potential for confusion, delays and inconsistencies to occur.

Submissions on the bill are due by 23 February 1995