Sub on Review of Processes Concerning Adverse Medical Events

Submission on Review of Processes Concerning Adverse Medical Events
by Helen Cull QC

Submission to MOH

May 2001

Overview

We agree with the report conclusion that the current system is slow, uncoordinated and ineffective at meeting consumers' needs. We would caution that whatever is proposed must be carefully thought through, so we do not end up with another version of a faulty system.

Consumers currently report to us:

• The system is difficult to find out about and is fraught with rules and regulations that are not well understood or which trip people up at some point. The system seems more designed to get rid of people than assist them.
• Consumers need more active support in engaging with this complex system.
• There is a deep feeling of injustice that consumers gain so little from the various systems in terms of monetary assistance for injuries, time off work and pain and suffering.

This submission will address the report under the headings used in the Summary of Recommendations pages 24-29.

Adequate resourcing

We agree with the recommendation for more adequate resourcing of the Health & Disability Commissioner so that complaints can be dealt with in a timely fashion and so that patient advocacy is well resourced on the ground. If some of the recommendations in the report are accepted by Government, then these must be adequately resourced if the system is to be credible for consumers. Revision of ACC legislation is also needed to reduce the punitive elements of the system and recompense for pain and suffering. The tests for successful cases is too severe and inconsistent with tests used in non-medical parts of ACC.

Information Sharing

We agree that there should be a central repository or database of results of investigations in the various systems. We would also argue that this should also include complaints not upheld or pursued, as there are occasions where these might contain information relevant to a new complaint. Protections could be put in place to control who has access to this information, to protect the privacy of practitioners.

Amendments to HDC Act

We support giving the HDC more flexibility, especially earlier action over cases where particular risks are suspected or disclosed.

We strongly support the right of consumers to bring cases to the Complaints Review Tribunal if the HDC does not refer the case to the Director of Proceedings. We believe 11 this right should be available to anyone who wishes to do so, even if the HDC has not

found a breach of the Code.

We are currently dealing with a case where a person's case was closed, because they did not respond in time (7 days!) and then a fairly superficial reason was given for not reopening it. This person (whose case was accepted by ACC as mishap) is then prevented from taking any other action. We believe that access to the CRT would provide consumers with an ability to challenge HDC decisions and provide a form of external audit of HDC performance.

We believe that any legislative impediment to naming health professionals found in breach of the Code should be removed.

Medical Practitioners Act 1995 & Medical Practitioners Disciplinary Tribunal

We believe that the l99S act needs overhauling. Very few cases are successful and this has discouraged the Director of Proceedings from taking cases. We are aware of cases where breaches of the Code have been found but quite different conclusions have been reached by the MPDT.

The composition of the MPDT is still too weighted in favour of doctors and the consumers used are too few, and often do not meet criteria for representing consumers (eg they are retired pharmacists or nurses. This is also true of CACs).

We agree that the MPDT should be able to approach a case in the light of previous cases, and suspend or deregister for serial offending. We do not believe that the actions taken should be constrained by the level of charge laid by the CAC or Director of Proceedings. The entire range of actions should be open to the MPDT looking at a case or cases.

We do not agree with giving the MPDT the powers of the CRT. The MPDT is a disciplinary system established to preserve professional standards rather than to meet the needs of consumers. It is inappropriate for the MPDT to be given a compensatory function. The fact that very few cases have been awarded compensation through the CRT is a criticism of the performance of the HDC of fice, rather than anything inherently wrong about the CRT. Too few cases have been referred to the Director of Proceedings by the HDC and there has been a reluctance to take more cases to the CRT because of the failure of particular cases.

ACC amendment, Information disclosure and Access to relevant information

We agree that ACC should be able to disclose information to other agencies if public safety is an issue. We believe this should be mandatory.

Similarly we agree that agencies should be able to share information on the grounds of public safety.

Health Professionals Competency Assurance Bill

We support a single disciplinary tribunal and have been submissions on the discussion paper for the proposed bill. We do not support the retention of CACs, as these frequently lack expertise and experience. The experience with CAC under the Medical Practitioners Act is that the majority of cases that go to CACs are rejected. We support a more professional first-line investigation and review of cases, guidelines for the review of cases and more accountability at this stage of the process.

Long-term solution - one-stop shop

While we strongly support the need to streamline and speed up investigations and resolution of complaints, we have many concerns about this proposal. It has a superficial appeal but would need to carefully examined to see whether it is feasible. The HDC process is supposed to be consumer-focussed. The needs of ACC and disciplinary systems are different. We are concerned that the consumer focus of the process would disappear if the needs of all agencies were to compete, and that the process would become more adversarial if the consequences of the complaint became more significant.