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The accountability of medical practitioners in this country has been a topic of considerable public interest for many years. Concerns over the lack of an effective complaints process for 'victims' of the health system have led to a number of government initiatives aimed at improving the situation. The commissioning of 'The Review of Processes Concerning Adverse Medical Events' in November 2000, conducted by Helen Cull QC, represents one of the government's latest attempts to address this issue.[1] After approximately four months, the 'Cull Report', which represents the findings of that review, was published on 12 March 2001.[2] In broad terms the report achieves three things. First, it identifies a number of significant problems with the current complaints process for adverse medical events in New Zealand. Secondly, it makes a number of recommendations for changes to the organisations involved in the process, such as the Health and Disability Commissioner (HDC), the Director of Proceedings (DP), the Medical Practitioners' Disciplinary Tribunal (MPDT) and the Complaints Review Tribunal (CRT). Finally, the report recommends the establishment of a 'one-stop-shop 'to co-ordinate the investigation of all patient complaints in this country.[3]
Despite the publicity surrounding the release of the Cull Report, there has been a dearth of academic writing commenting upon it.[4] This paper aims to fill that void by mounting an in-depth critique of the report.[5]
There are two components to the paper and they occur concurrently. First, there is a systematic and detailed analysis of Cull's most significant conclusions and recommendations.[6] While Cull's proposal for the creation of a single 'portal' through which all patient complaints must pass is supported, many of her other recommendations are rejected. Most notably, the writer rejects Cull's recommendation to compress into one system, the investigation of complaints, discipline of medical practitioners and compensation of aggrieved complainants.
The second component of the paper is a broader consideration of the occurrence of errors in the delivery of health services in this country. The goal of this part of the paper is to highlight the fact that there needs to be a fundamental change in the way medical errors are perceived by society, as it is often inappropriate and counter-productive to apportion blame to frontline personnel for adverse medical events. In such situations, errors must be regarded as consequences not causes.[7] Accordingly, true blame for some errors should be focused on systems issues which occur well before front-line personnel become involved in an adverse event. This discussion is of direct relevance to the first aspect of the paper, as it is only once this shift in attitude occurs that a more effective complaints system for adverse medical events will be able to be developed.[8]
Central to this analysis are the writings of James Reason in the field of human error.[9] Although focused on errors in contexts other than health care, Reason's theories on latent errors and systems failures, error detection and prevention and the establishment of a safety culture, can be extrapolated to the health sector. The paper will analyse Reason's theories in relation to three separate topics. First, in considering Cull's recommendation for the mandatory reporting of medical practitioners practising below an acceptable standard, the paper will explore five critical factors identified by Reason which underpin the creation of an effective system of reporting.[10] Secondly, Reason's theories on latent errors and systems failures will be considered in conjunction with an analysis of Cull's recommendations made under term of reference 2. This section of the paper is important, as a failure to understand the role that latent errors and systems failures play in the occurrence of adverse events is a barrier to the timely investigation of complaints and to the creation of a robust complaints system.[11] Thirdly, Reason's theories on error detection and prevention will be analysed in conjunction with Cull's recommendation that the office of the HDC take on the additional role of auditing the databases of a number of other organisations, such as the Medical Council of New Zealand (MCNZ).[12]
Error detection and prevention are not considered in depth by Cull. This is unfortunate as they are important elements of an effective complaints process because if the occurrence of errors is reduced through early detection and prevention, the complaints system will have far fewer complaints to process.[13]
Finally by way of introduction, it is apparent that as a result of Cull's almost exclusive focus on the interests of patients, her report does not consider adequately two other key issues — the role registered medical practitioners (doctors) and systems issues play in adverse medical events. A failure to consider these issues will impede the development of a successful complaints process. This paper will concentrate on doctors because they are a key group of registered health professionals operating in the health sector in New Zealand and the term 'doctors' is readily understood.[14] The term 'systems issues' is perhaps less clear. The actions of health policy makers, funders, managers and institutions are all grouped under this heading. Some examples of systems issues may help to explain the term. A lack of funding from the Ministry of Health (MOH) to the District Health Boards (DHBs); poor purchasing decisions by the DHBs; inadequate staffing; poor clinical and/or managerial leadership; administrative problems with computer tracking systems; and facilities problems such as a lack of space in hospitals are all 'systems issues'.
An in-depth review of the Cull Report is timely as many of Cull's recommendations have been included in two government bills, the Health Professionals Competency Assurance Bill (HPCA Bill) and the Health and Disability Commissioner Amendment Bill (HDCA Bill). According to the MOH, 'it is anticipated that [these Bills] will be introduced into the House of Representatives and referred to the Health Select Committee sometime in mid-2002'.[15] This is of concern as many of Cull's recommendations are open to criticism.
Since the late 1980s, there has been a commonly-held perception in New Zealand that the systems of accountability for doctors and the procedures for aggrieved patients to gain redress against them, are deeply flawed.[16] This perception has been fuelled by a number of highly publicised events. The Cartwright Inquiry into cancer treatments at National Women's Hospital;[17] the actions of the cardio-thoracic surgeon Mr Keith Ramstead in Christchurch and the deaths of a number of his patients; and the investigation into Canterbury Health Limited by the HDC in 1998 regarding possible breaches of the Code of Health and Disability Services Consumers' Rights (the Code) are three such examples.
Events such as these have had a considerable effect on the health sector in New Zealand. Rossiter notes that there has been an increased 'emphasis on the "rights" of consumers and on the "accountability" of health providers'.[18] Furthermore, the current HDC has noted that there has been a rise in consumer expectations, in that a risk which would have been regarded as acceptable 10 years ago is now not acceptable.[19] These changes in the public's attitude have resulted in a number of government initiatives,[20] most notably, following the Cartwright Inquiry, with the establishment of the office of the HDC in 1994.[21]
Despite these developments, or perhaps because of them, instances of public disquiet at the actions of doctors such as Drs Parry, Bottrill and Fahey have remained prominent in the media.[22] Thus, one of the questions at the heart of the Cull review, and indeed this paper, is whether the current complaints process is able to meet the needs of patients in situations such as those raised by Drs Parry, Bottrill and Fahey. The conclusion of the Cull Report and this paper is that the status quo is failing patients in this regard.[23]
Before turning to consider the Cull Report, it is first timely to examine the climate in which doctors are practising in New Zealand. This is because of the key role doctors play in the country's health system. In short, the current climate is difficult to describe. This is not due to a shortage of comment on the subject, but due to the conflicting nature of such comment. For instance, on the one hand, New Zealand was recently described as 'one of the most — if not the most — hostile practising environments for doctors in the world'.[24]
Furthermore, in a recent study often general practitioners (GPs) who had been the subject of patient complaints, Cunningham stated that the implication in the current complaints system is that, 'health care overall is made better through the process of receiving reports of care that are perceived to be inadequate'.[25] However, Cunningham stated that he could find 'no evidence that this assumption has been tested'. On the contrary, he concluded that the complaints process was so damaging to the GPs interviewed 'that the reverse of the assumed outcome (improved patient care) resulted in every case'.[26] However, on the other hand, not all agree that doctors are practising in a hostile environment. For example, the HDC has written that the feeling held by some doctors that they are under siege from medico-legal risks is exaggerated.[27] The former chair of the MPDT also points out that in fact 'patients who are unhappy about the standard of care they receive, or who are harmed instead of healed, have a much reduced jurisdiction for complaint compared to health care consumers in other jurisdictions'.[28] Nevertheless, it seems advisable to proceed with caution in designing an effective complaints process. Studies such as Cunningham's highlight the need for the rights of doctors, as well as patients, to be considered when designing an effective complaints system. It is important that the pendulum be not allowed to swing too far and place such strain on doctors that it leads to a reduction in the quality of services offered by them. As the HDC notes, 'unless health professionals feel safe practising in New Zealand, they may well move towards the practice of defensive medicine'.[29] Thus, a balancing act is required between the needs of patients to complain effectively and the needs of doctors to operate in a supportive environment.
A number of factors must be considered when designing an effective complaints process. First, occasions of deliberate wrongdoing must be able to be separated from cases of genuine error. After all, to err is human and therefore it is not just to treat intentional adverse events in the same way as negligent ones. In focusing on the speedy resolution of complaints, however, Cull tends to overlook this important distinction, as from the perspective of a complainant, it is often of no consequence. Furthermore, this approach has resulted in the grouping together of issues such as investigating breaches of the Code, disciplining doctors and compensating complainants and has seen the issue of error prevention largely ignored. What this paper will demonstrate is that simplification is not always best achieved by streamlining. On the contrary, complaint investigation, discipline of doctors, compensation of complainants and error prevention are best dealt with separately.
Secondly, an effective complaints system must be alive to the role played by systems issues in the occurrence of adverse medical events. This issue is not explored sufficiently in the Cull Report but will be considered at length in this paper.
Thirdly, although not at the heart of a complaints process, a truly effective process should have the capacity to examine questions of error detection and prevention, as a reduction in the occurrence of adverse medical events through an understanding of these issues has obvious ramifications for the number of complaints requiring the attention of a complaints process. As stated above, the report largely ignores these issues, but this paper will address them nonetheless.
Fourthly, an effective complaints system is one that addresses the wants of patients. It is all too easy to assume that victims of an adverse medical event just want compensation. However Jamieson, in summarising a number of surveys on the topic of patient wants, has stated that patients want four things:
an explanation and apology for what went wrong, some assurance that efforts will be made to ensure that what happened to them will not happen to anyone else, accountability — a belief that the doctor or organisation should have to account for their actions, and sometimes, but by no means always, compensation for actual loss, pain and suffering.[30]
Finally, all of these factors must be analysed in light of certain known 'facts': there is a limited pool of health funding; all the individuals involved in the health system are rational, but human and will, therefore, make mistakes; health policy is a highly politicised area; and the stakes are high — for patients often their life is on the line; for doctors, their career.
As with any inquiry, the shaping of the terms of reference can have a profound impact on the conclusions and recommendations made.[31] In essence, the terms of reference for the Cull Report call for an examination of what is wrong with the current complaints process, what is required to fix any problems and whether anything else relevant can be recommended. While these terms may appear to be broad in scope, in fact they call for only a narrow inquiry into what is required to create an effective complaints process. An effective complaints process can only be developed once the full context in which it operates is understood. Thus, analysis of latent errors and systems failures, error detection and prevention and the establishment of a safety culture is required. While it could be argued that consideration of these matters is suggested in the background section to the terms of reference and they could even be regarded as relevant factors as part of term of reference (iii), it is submitted that these issues should have been included expressly. Although an inquiry must have its boundaries, the omission of these factors cannot be justified on this basis.[32]
The report begins with a summary of the fourteen organisations which can potentially investigate the same adverse medical event, contemporaneously or cumulatively without reference to the others .[33] Cull describes this as creating:
a lengthy process, with a multiplicity of agencies processing the same complaints, making the complaints process confusing, cumbersome, difficult to access and costly, both financially and emotionally.[34]
From the perspective of doctors, Jamieson has described the current system in considerably more severe terms. Referring to the example of the remorseless pursuit of an anaesthetist through a number of complaint agencies, Jamieson describes the complaints process as a 'vengeful and undiscriminating machine out of control'.[35]
After discussion of the problems with the multi-agency approach,[36] Cull summarises the factors contributing to patient dissatisfaction with the current complaints process as including difficulties of access; time delays; multiple investigations; lack of agency interaction; dissatisfaction with cost recovery and ACC entitlement; and the level of determination and courage required to pursue a complaint.[37] To solve these problems, Cull recommends:
a streamlined approach to complaints, which should be well publicised and avoid multiple investigations and delays by a principal process which is co-ordinated, timely and determines the complaint efficiently and effectively.[38]
Cull's call for the complaints system to be 'well-publicised' without more is merely stating the obvious. Given the report's finding of high levels of public confusion and ignorance of the current complaints processes,[39] it is surprising that Cull did not go on to consider how these problems might be overcome.
Furthermore, the issue is not as straightforward as it might appear as disagreement exists over whether there is enough information about the complaints processes available to the public. Phipps and the Medical Protection Society (MPS) have both stated that there is already adequate information, as evidenced by the fact that in the year 2000, 4785 'enquires' were received by the HDC's office.[40] Nonetheless, it is submitted that there should be more public education about the complaints process. To this end, this paper supports a number of the education techniques recommended by the submissions on the Cull Report.[41]
In addition, it should be acknowledged that public education of the complaints system is a joint responsibility that falls on both the public and those engaged in the provision of health services. Thus, doctors should be given more information about the complaints process which they should then pass on to their patients. In this way, Cunningham's desire to see GPs given more information about the complaints processes would also be realised.[42]
Cull notes that a number of potential complaints were avoided by hospitals, by the classification of patient inquiries that were described as 'concerns' separately from 'complaints'.[43] This system of classification, facilitated by attaching significance to terminology which was probably lost on the inquiring patients, is a classic example of a systems failure in the current complaints process. Cull recommends that there should be one principal body to receive all such 'concerns' and 'complaints'[44] and that if health providers receive any complaints, they should be referred to the HDC.[45] This recommendation is supported as it will allow the HDC to initiate the appropriate action in each case.
In reviewing the processes of investigation undertaken by the HDC, Cull states that one of the statutory purposes of the HDC is to secure 'the fair, simple, speedy and efficient resolution of complaints'.[46] However, in highlighting the case of Mrs Colleen Poutsma, which was the catalyst for the Cull review, Cull reports that complaints made to the HDC take on average 18 months to two years to conclude.[47] Indeed, the HDC himself has recognised that this statutory purpose of the office is difficult to maintain.[48] Cull identifies the cause of such long delay as being the fact that the HDC must investigate all complaints received.[49] To overcome this problem, Cull recommends that,
section 36 of the Health and Disability Commissioner Act 1994 (HDC Act) should be amended to enable the Commissioner to take a flexible approach to complaints.[50]
This would include giving the HDC the power to carry out preliminary inquiries prior to the commencement of a formal investigation, so that the appropriate course of action could be pursued for all complaints.[51] 85% of the submissions on the Cull Report agreed with the recommendation to allow the HDC to 'triage' complaints .[52] Furthermore, the recommendation has been included in the HDCA Bill, due to be introduced to the House of Representatives in early 2002.[53] The recommendation is supported by the writer and indeed should be extended to see the HDC act as a 'portal' for all complaints about adverse medical events. However, a number of concerns arise with this recommendation which require further discussion. First, the recommendation could become problematic as it vests authority in one office to make decisions about complaints of all types. Some health sector organisations have commented that this could result in the office of the HDC having too much control over complaint decisions.[54] In response, it is submitted that this concern must be balanced against the need to have a complaints process that is easily understood by and accessible to the public. In addition, in order to prevent the abuse of power, a system of checks and balances could be implemented in the form of a review of the processes undertaken by the HDC in making a decision not to take further action. Such a review could be conducted by a lay observer or a legal assessor and should probably be limited to questions of process, such as in an application for judicial review.[55] As the investigation of complaints is to be encouraged wherever possible, the system would only operate where, having made preliminary inquiries, the HDC chose to take no further action and the complainant was not satisfied with this decision. A complainant could then refer their complaint for review. If it was decided that the HDC had not followed due process, then the complaint could be referred back to the HDC for full investigation.[56]
A second concern arising out of the HDC triaging all complaints, is that it would empower the HDC to make decisions that previously a number of organisations undertook, each with their own institutional knowledge about their field. It could be difficult for the HDC to build up such knowledge across the whole health sector.[57] In response, it is suggested that Cull's recommendation could only be implemented effectively if greater resources were given to the HDC. This would allow for the employment of case managers, who would become responsible for deciding where a complaint should be referred for investigation and then reporting the outcome of that investigation back to the complainant. The case managers should have expertise from across the health sector, as this would contribute to the establishment of institutional knowledge in the office of the HDC.[58]
Thirdly, it has been suggested that greater flexibility would make the processes of investigation uncertain and unpredictable, with the result that this would make it hard for a doctor to provide an adequate defence to a complaint.[59] This concern can be addressed simply by publicising the existing statutory framework of options open to the HDC when processing a complaint.[60] In addition, greater clarity could be added with the publication of a commentary to the framework, explaining how a complaint would most likely be handled. Such a model has worked successfully with the commentary to the Rules of Professional Conduct for Barristers and Solicitors and could work effectively in the case of the HDC.[61]
Finally, Phipps and the New Zealand Nurses Organisation (NZNO) have said that the HDC already has enough flexibility in processing complaints; the problem is that the powers which exist are being underutilised.[62] Indeed when one reads ss 35, 36, 37(1) and 45 HDC Act it is apparent that the HDC already has considerable powers when processing a complaint. The rationale behind this breadth of powers would seem to be that, as Phipps notes, when the HDC was established it was designed to be a 'one-stop-shop' for complaints. In summary, the HDC should take a more flexible approach when dealing with complaints. However, this does not require an increase in the HDC's powers. Rather, the HDC needs to change the way in which his/her current powers are utilised, needs more resources and needs to develop a case management system to process complaints. These changes should help to alleviate the long delays currently experienced by complainants.
Section 45 HDC Act empowers the HDC to make various recommendations subsequent to an investigation. Section 46(2) HDC Act outlines the powers of the HDC in the event that no action is taken to give effect to such recommendations. Cull argues that these powers are inadequate and without further powers, the HDC is at risk of becoming a 'toothless tiger'.[63] Interestingly, the current HDC does not share this view, stating that 'while formal sanctions and enforcement powers are rarely required, they are available if needed'.[64] Cull makes the following recommendation:
Section 46 HDC Act should be amended to provide the Commissioner with a power to report to the relevant health professional body the failure of the person to take steps to give effect to the Commissioner's recommendations, with a power to name the person concerned. Additional powers for the Commissioner to refer to the Director of Proceedings should also be considered.[65]
Although supported by six submissions on the Cull Report,[66] this recommendation should be treated with caution, particularly because of the current HDC's observations about his ability to use existing powers if required. In addition, it may be more appropriate in the case of a doctor who refuses to implement a recommendation, to undertake an independent examination of the reasons for the refusal, rather than to afford the HDC further powers of enforcement.[67] A balance must be struck between the availability of effective sanctions against the risk of making doctors feel that they are under siege.[68] Therefore, a more appropriate recommendation may be to encourage the HDC to make better use of his existing powers, such as the making of public statements (including the naming of parties).[69]
The DP describes her role as 'not being an easy one'.[70] The functions and rights of the DP, contained in s 49 HDC Act, are ambiguous and there is a lack of clarity about the DP's independence from the HDC.[71] Against this background, Cull identifies the fact that the DP is required currently to conduct an investigation independently of the HDC, as a factor adding to delays in the resolution of complaints.[72] Cull recommends that the DP should be able to access the investigation material from the HDC and build on the HDC's recommendation in reaching a decision to institute proceedings.[73] This recommendation is supported, in large part because this is the way the process is structured in New South Wales and it works well there.[74]
Secondly, as part of Cull's recommended amendments to s 36 HDC Act, it is proposed that for serious complaints, the HDC should be able to refer such cases directly to the DP for urgent action.[75] Unfortunately, this recommendation is not further elaborated on by Cull,[76] but the joint ACC and Department of Labour submission on the Cull Report suggested that the recommendation would be 'a complicated and lengthy process'.[77] Further elaboration on the ramifications of such a proposal is required.[78] Finally, there are a number of other issues raised by the current procedures of the DP that would have benefited from consideration in the Cull Report. The independence of the DP from the HDC and the way in which the DP should undertake the balancing act required in s 49(3) HDC Act are two obvious examples.[79]
Here, the Cull Report concludes that patient access to the CRT is unduly restrictive. The report recommends that s 51 HDC Act be amended 'to enable patients to bring proceedings to the CRT after the HDC has found a breach of the Code and does not refer it to the DP'.[80] The recommendation has been included in the HDCA Bill.[81] One strong argument in favour of this proposal is that it prevents the sense of a loss of 'ownership' of a complaint which is experienced currently by a number of complainants who are forced to abide by the decisions of the HDC and DP.[82] Control over the decision to proceed with a case and the various decisions that flow from that, such as choice of legal counsel, would empower complainants in a way they are currently denied.
However, several issues arise in opposition to the recommendation. First, there is a need for finality. The Royal Australian and New Zealand College of Psychiatrists felt that if the HDC has determined that it is not appropriate to proceed, then this decision should be final.[83] In addition, such a change would override the DP's power to refer complaints to the CRT, and thus this power of the DP would become useless.[84]
Phipps has stated that the proposal also raises difficulties as it blurs the significant ideological differences between compensation and discipline.[85] For instance, the nature, scope and procedures of a hearing can vary dramatically according to its purpose. As a result, it is unwise to confer upon the CRT the power to make both disciplinary and compensatory orders. Another point of concern is that it would appear as though there is a conflict between allowing patients to bring actions for compensation to the CRT in their own name and the bar to civil proceedings contained in s 394 Accident Insurance Act 1998 (AIA).[86] It is wholly undesirable to allow those who have a complaint that can be investigated by the HDC to have access to an additional avenue for compensation, while those who do not so qualify are left with only their ACC entitlements. Such an amendment undermines the 'no fault' and exhaustive nature of the ACC scheme. By contrast, the status quo does not undermine the ACC scheme, as it is the DP, not the complainant, who pursues a prosecution. Therefore, the decision to proceed is based not on the direct interests of the complainant, but only after the DP has decided that pursuing a case is in the public interest.[87] Thus, the DP may pursue a prosecution to obtain remedies other than the compensation of the complainant.[88] Given the expense involved in taking a case to the CRT, it is highly unlikely that the desire for compensation would not be at the heart of an action pursued by a complainant.[89] Furthermore, the recommendation is a 'pyrrhic victory' for patients and is disadvantageous to doctors and the CRT itself. For complainants, the costs and time delays associated with bringing a claim and the risk of losing and potentially having an adverse order for costs made are such that many complainants would be ill-advised to pursue a case personally. If legal aid was made available to complainants, this would reduce the risks involved in pursuing a case. However, this would place a further drain on an already over-stretched legal aid budget. The recommendation could also harm complainants through potential increases in medical defence premiums, which would most likely be passed on to patients through medical fee increases.[90] For doctors, the threat of double punishment is fortunately avoided by s 54(5) HDC Act. However, the costs involved in mounting multiple defences, before the CRT and/or a professional disciplinary hearing, are such that this recommendation places an unwarranted burden on doctors. Such a burden could easily manifest itself in the practice of defensive medicine, or the refusal to treat high risk patients, both of which are counter to the interests of patients. Finally, the CRT is likely to receive such an influx of cases that it will require a substantial increase in funding. In conclusion, therefore, the recommendation is rejected both in principle and for reasons ofpracticality.
Only three submissions commented on Cull's recommendation that s 52(2) HDC Act be amended to enable patients to seek damages for pecuniary loss as a result of an adverse medical event.[91] Like the above recommendation, this recommendation is rejected as being inconsistent with the ACC legislation. Furthermore, it would not simplify the complaints system, as it would likely require complainants to undertake the difficult task of 'establishing a causal link between the breach of their rights and their loss'.[92]
In keeping with Cull's drive for a more flexible approach to complaints, the report recommends that s 61 HDC Act be amended, as:[93]
it would be preferable that the Commissioner could undertake a preliminary inquiry into a complaint, before formally commencing an investigation, and decide that a mediation conference should be called. Currently, this power can only be exercised after an investigation has already been instigated.[94]
This recommendation was supported by all ten submissions which commented upon it.[95] In addition, the recommendation has been incorporated into the HDCABill.[96] However, the desirability of this recommendation is questioned by Wendy Brandon, the former chair of the MPDT.[97] Brandon notes that the use of mediation in the resolution of health complaints is inconsistent with the principal purposes of the Medical Practitioners Act 1995 (MPA) and the HDC Act: 'to protect the health and safety of the public, and to promote and protect the rights of health consumers and disability services consumers'.[98]
In addition, the educative function and standard setting role of the disciplinary process are lost in mediation. The relationship of doctor and patient also often features a lack of equality in bargaining power. Brandon notes that patients often have very little choice about entering the relationship and may have very little knowledge about the competence or trustworthiness of a doctor. Furthermore, patients often enter such a relationship weakened by illness, pain, or grief. As a result, Brandon concludes that 'the mediation option should be used sparingly in the context of relationships of trust... the doctor-patient relationship is a paradigm of such relationships'.[99] Thus, it is submitted that the status quo should continue, with mediation only becoming an option where an investigation has already been instigated by the HDC. In this way, the purposes of the MPA and the HDC Act will be maintained, as the details of the adverse event will not remain confidential between the parties. Furthermore, the criteria used by the HDC when deciding whether a complaint is suitable for mediation should be amended to take account of Brandon's arguments.[100] The need for this is particularly evident, as the current HDC apparently favours the use of mediation.[101]
Cull states that the principal criticism with the CAC process is that it is often inconsistent and depends on the constituent members of the Committee.[102] Furthermore, there are concerns raised about the procedures the CACs follow, notably the fact that there is no mandatory requirement for a CAC to include legal input. Cull recommends that
in the interests of consistency and accountability, CACs should either receive advice from a legal assessor or CAC membership should include a lawyer.[103]
One of the various functions CACs are established for is to hear complaints about doctors for adverse events which occurred prior to 1 July 1996. As of 1 July 2002, any such events will have occurred more than six years ago and accordingly there will be very few of them. As a result, it is submitted that all such complaints should be reported to the HDC for triage so that they may be referred to the appropriate body for investigation. The CAC will no longer be empowered to investigate such complaints. Rather, CACs will remain to investigate other matters, such as where an employer makes a complaint against a doctor, or where a doctor is investigated for a matter which does not relate to patients. This means that there will be only one route for prosecutions to be taken to the MPDT for patient complaints. In order to ensure that these other matters are considered appropriately by CACs, Cull's recommendation for legal input of one form or another is endorsed.
The first issue to be considered is the 'gatekeeping' of complaints from the MPDT by the HDC. Although not directly addressed by Cull, this issue currently causes problems for the MPDT and is worthy of comment. The HDC has said that he regards his 'gatekeeping' role, where complaints of a less serious nature are not referred to the DP, as a very important function of his office.[104] However, Brandon has criticised this practice as having negative consequences for the disciplinary process. First, such conduct reduces transparency as it sees the HDC, not the disciplinary process, determine the threshold for and rationale behind the prosecution of complaints.[105] Secondly, gatekeeping reduces the
accountability of doctors generally, and reduces the opportunity to identify 'clusters' of adverse medical events.[106] Finally, while not strictly within the professional disciplinary jurisdiction, gatekeeping prevents the opportunity for patients to be heard and thereby undergo 'catharsis' and psychological healing.[107]
Accordingly, it is submitted that 'streamlining' the complaints process must not be allowed to become 'minimising' the discipline process. In addition to its legal role, the MPDT plays an important role in educating the medical profession, setting standards of appropriate behaviour, and providing complainants with an opportunity to be heard. These roles must not be undermined and thus, the HDC should refrain from acting as an over zealous 'gatekeeper'.
The second issue is addressed in the Cull Report. Cull recommends that
to streamline the current patient complaint mechanisms, further consideration should be given to providing the MPDT with the powers of a CRT. This would avoid a duplication of hearing and would bring within the jurisdiction of the MPDT the CRT's jurisdiction to reimburse pecuniary loss and to award damages.[108]
For the same reasons stated above in relation to the CRT, however, this recommendation should be rejected, as it blurs the distinction between discipline and compensation.[109]
The report identifies a problem with the inability of the MPDT to remove a doctor's name from the Register in the event that s/he has been found guilty on a number of occasions of charges of 'conduct unbecoming' or 'professional misconduct' .[110] Consequently, Cull recommends that
The powers of the MPDT should be amended to enable the Tribunal to remove a practitioner from the Register, on multiple charges of proven "professional misconduct" or "conduct unbecoming".[111]
This recommendation should be rejected as it raises significant problems. Fundamentally, it is questioned whether striking off is appropriate in such a situation, as at no time has the practitioner in question committed an act which in itself justifies striking-off. In essence, the recommendation empowers the MPDT to impose a heavier penalty on a practitioner with a record of prior offending. As this practice is commonplace in the ordinary criminal courts, why is it contested here?
First, the recommendation highlights the fact that the Cull Report analyses issues from a patient-centred framework. In considering the perspective of doctors, a number of important factors emerge. First, being removed from the Register spells the end of a doctor's career. Thus, striking-off can be considered a 'double-punishment' as not only is a doctor punished for that complaint, but he/she also loses the ability to work as a doctor in the future. Secondly, striking-off may result in the loss of a doctor with considerable expertise who could be difficult to replace. Thirdly, the considerable costs incurred by society in training doctors makes striking-off justifiable in only the rarest cases. Thus, contrary to Cull's recommendation, the emphasis should be on rehabilitation, not striking-off, wherever possible.
If striking-off is to be considered after a history of prior offending, two other points arise. First, is a practitioner to be removed based on the number of complaints against them, orthe seriousness of the complaints?[112] There would need to be strict guidelines formulated to address this question so that doctors could practise with certainty. Drafting such guidelines would not be an easy task. For instance, if the penalty of striking-off was to be imposed after three guilty verdicts, with no discretion being given to the MPDT, then a doctor may be struck-off when the nature of the complaints was relatively minor. Secondly, the recommendation could see doctors move towards the practice of defensive medicine, the pitfalls of which are readily appreciated.[113]
After reviewing the history of the ACC MMU,[114] Cull recommends that there should be legislative amendment to enable ACC to disclose information to relevant agencies on the grounds of public health and safety.[115] This recommendation will be analysed later in conjunction with Cull's proposal for the establishment of a national database.[116]
Cull's discussion of 'medical error' and 'medical mishap' is somewhat lacking, in that while it focuses on improving the position of complainants, it does not recommend a solution to the underlying problem that Cull identifies because of the way in which cases of medical misadventure are classified.[117] This is a real concern, as the need for accurate classification goes to the heart of the effective identification of patterns of adverse medical events.[118] Cull identifies the underlying problem in the following way:
In numbers of cases, the medical practitioner involved was willing to accept the adverse medical outcome was "medical mishap" and certify that it was a "rare and severe event", but was not prepared to co-operate or be willing to accept that an event was "medical error". The reason for this is perhaps obvious. Once a "medical error" finding was made, ACC were required to report it to the Medical Council.[119]
Indeed, from a doctor's perspective, it is unrealistic to expect a different result. Unfortunately, however, Cull overlooks the significance of the fact that in cases involving allegations of medical error, the views of independent experts are routinely sought by the ACC MMU.[120] In addition, the ACC MMU also takes into account the views of the doctor concerned, although this information is not regarded as determinative. While these steps go some way to alleviate the problem outlined by Cull, it is the writer's view that in the minority of cases, it may be preferable for the ACC MMU to disregard the doctor's opinion altogether, where that doctor has shown himself/herself to be hostile to the investigation. In this way, cases of medical misadventure will be classified correctly in even the most difficult situations. In addition, one of the submissions on the Cull Report suggests that the HDC, not ACC, be responsible for processing claims for medical misadventure as 'findings by ACC can have severe implications on a doctor's career and professional reputation'.[121] This suggestion is rejected as once the HDC office becomes responsible for investigating claims of medical misadventure, a similar stigma would likely attach to doctors who have been found to be at fault by the HDC.
In focusing on the needs of complainants, Cull concludes that there are currently long delays experienced by complainants waiting for ACC entitlements while an investigation is made into whether a medical misadventure was an 'error' or a 'mishap'. This has the effect of penalising patients, 'whose needs are not met until the claim has been accepted, by which time, the real need has passed and there is no compensation for past loss'.[122] By way of remedy, Cull proposes a system of interim cover for further discussion. The scheme would see provisions enacted to allow ACC to provide entitlements on receipt of a medical misadventure claim, which meets ACC's 'threshold' criteria. In the event that a claim was then refused there would be amechanism forthe refund of entitlements already paid.[123] The joint ACC and Department of Labour submission on the proposal noted that complainants awaiting ACC entitlements currently have access to financial and health care cover, including access to sickness benefits and accommodation allowances.[124] In addition, the proposal would increase the length of time taken for ACC to make final determinations on eligibility for entitlements, due to an increase in the number of administrative steps in the claim process. The scheme would also expose the government, ACC and the complainant to considerable financial risk, as currently 57% of claims for medical misadventure are declined.[125]
While it is acknowledged that Cull did call for further discussion of this proposal, it is submitted that on any view the scheme is impractical and as a result should not have been recommended. A much more practical and risk-free recommendation would be to simply increase the speed with which medical misadventure claims are processed. Indeed, the joint ACC and Department of Labour submission has highlighted that there have been ongoing improvements made to reduce the time taken in processing claims for medical misadventure.[126]
Cull concludes that
The multiplicity of agencies processing claims and/or complaints has made the complaint process cumbersome and difficult to access. There needs to be a streamlined approach to patient complaint mechanisms where one agency is ultimately responsible for patient complaints and other agencies are required to direct patients to the principal complaint process.[127]
By way of remedy, Cull proposes an amendment to s 38(1) HDC Act so that where appropriate, the HDC can refer a complaint to the appropriate professional body.[128] This proposal should be amended to include the introduction of HDC case managers, who should be responsible for referring complaints to the appropriate body for investigation. In this way, the HDC will be able to act effectively as the 'portal' for the triaging of all patient complaints. This process would be aided further by an increase in public education of the new complaints system, as discussed above. The effect of this recommendation is also supported in the interests of doctors, as it should reduce the reactions of stress and complaint fatigue that have been experienced by those doctors undergoing investigation.[129]
In the interests of safe medical practice, statutory provisions should be enacted requiring mandatory reporting of practitioners believed to be practising below an acceptable standard.[130]
In principle, this conclusion is highly desirable, although in practice, it will be extremely difficult to implement. Successful implementation is dependant on two things: the extension of mandatory reporting to include the reporting of systems failures; and the development of a culture of reporting.[131]
The issue of the mandatory reporting of doctors has been addressed by the Medical Practitioners Amendment Bill (MPA Bill) and the HPCA Bill.[132] The MPA Bill provides for the compulsory reporting of a practitioner when it is reasonable to believe the practitioner's competence is below standard.[133] The HPCA Bill contains a similar provision and adds the additional ground of mandatory reporting where a practitioner is believed to be suffering from a mental or physical condition that affects their work.[134] The majority of submissions received on the Bills favoured implementation of mandatory reporting.[135] However, of the 20 submissions on the Cull Report that agreed with mandatory reporting, 10 did so in principle only.[136] The main criticism of Cull's recommendation was that it provides a 'simple response to a complex problem'.[137]
Why is Cull's recommendation unsatisfactory? First, it fails to consider the problem of enforcement. What happens if an adverse medical event occurs as a result of a senior surgeon's recently acquired and highly noticeable incompetence, and a junior doctor assisting the surgeon has failed to report the surgeon?[138] Is the junior doctor to be disciplined? If so, what penalties will s/he face?[139] These questions must be answered in consultation with doctors, as a system of mandatory reporting will only be successful if it is supported by the people who must work within it.
Secondly, the recommendation does notprovide forthe mandatory reporting of systems failures or other institutional failures that threaten patient safety. This is highly surprising given that Cull drew the following conclusion when considering the HPCA Bill:
the recognition that health professionals do not work in isolation and that systemic failure is often a contributing factor to unacceptable practice, has heightened the need for mandatory reporting.[140]
Why then is Cull's recommendation focused solely on the reporting of health professionals? Provision must also be made for the mandatory reporting of systems and other institutional failures.
Thirdly, the recommendation lacks detail in relation to the definition of what constitutes 'acceptable practice'. Phipps has made the observation that the threshold for referrals of practice below standard is governed by the perceived outcome of this action.[141] Thus,
if there is trust and the knowledge that a referral will result in a rehabilitative, rather than punitive, approach being taken and a thorough investigation being carried out in a fair way, then people are likely to define bad practice at a much lower benchmark.[142]
Clear guidelines are needed as to what types of behaviour would be required to be reported, so that doctors do not feel under siege from an increased level of scrutiny.[143] This is particularly so as Cull's proposal contemplates the reporting of situations which may or may not disclose a breach of a patient's rights. Furthermore, Phipps' observation raises the question of how a culture of reporting can be created within the health system. The mandatory reporting of both doctors and systems failures is only supported in such an environment.
In order to develop a successful reporting culture, it must first be understood that there are some powerful disincentives to participating in a reporting scheme. Reason has summarised these disincentives as: 'extra work, scepticism, a natural desire to forget the incident ever happened, and — above all — lack of trust and with it, the fear of reprisals'.[144] Reason goes on to state that the rationale for any reporting scheme is that feedback on the local systems and institutional factors promoting errors is far more important than assigning blame to individuals.[145]
Having established these points, Reason goes on to examine two reporting programmes that operate outside the health sector.[146] From this, Reason has identified five critical factors that are required to create an effective reporting scheme. The factors are:
• Indemnity against disciplinary proceedings — as far as it is practicable.
• Confidentiality or de-identification.
• The separation of the agency or department collecting and analysing the reports from those bodies with the authority to institute disciplinary proceedings and impose sanctions.
• Rapid, useful, accessible and intelligible feedback to the reporting community.
• Ease of making the report.[147]
Before applying these factors to the health system, it is important to recognise that a culture of reporting does not exist currently in the health sector in New Zealand.[148] This makes the implementation of such a culture with respect to mandatory reporting all the more important. First, in relation to indemnity against disciplinary proceedings, it is submitted that clear guidelines must be established as to when a doctor is likely to face disciplinary action. For instance, the guidelines should include provisions which state that a finding that a professional has breached the Code will not necessarily result in prosecution; rather something more will be required, such as an intention to cause harm, or gross negligence.
Despite the existence of legislation protecting both the confidentiality of patient information, (the Privacy Act (Health Information Privacy Code) Regulations 1994) (HIPC) and the confidentiality of employees wishing to report voluntarily the acts of other employees, (the Protected Disclosures Act 2000),[149] there is no current legislative protection for the confidentiality of individuals who participate in a mandatory reporting scheme. The best way to ensure confidentiality in this context would be to have event reports filed anonymously. This would not be desirable in all cases though, particularly where an investigation was undertaken by the HDC requiring further consultation with the individual who completed the report. As a result, it is suggested that reports should be filed with the reporter's identity included. However, if at the end of the investigation it was decided that no disciplinary action was to be taken, then the report should be de-sensitised.[150] The need to ensure that the organisation collecting and analysing the reports is separated from those bodies with the authority to institute disciplinary proceedings can be included within Cull's 'one-stop-shop' proposal. This would be achieved by having the HDC's case managers refer such a report about a doctor to the MCNZ for investigation by a CAC. Then, mimicking the complaints process for patients, the DP, not the HDC, would be responsible for deciding whether or not to institute disciplinary proceedings as a result of the CAC's findings.[151] The call for there to be rapid, useful, accessible and intelligible feedback to the reporting community is one that has already been made in the health sector by Cunningham.[152] Thus, every time a report is filed, the findings of the investigation into the adverse event should be distributed to the doctor(s) identified in the investigation, the institution where the adverse event occurred and the individual who filed the report. In addition, desensitised versions of these reports should be made available on a wider basis, so that the whole health sector can benefit from them.[153]
Finally, strategies would need to be developed to ensure that the process of making the report remains straight-forward. Factors such as the format, length and content of the reporting form are all important.[154]
A mandatory reporting system of doctors as provided for in the MPA and HPCA Bills is supported on two conditions. First, the scope of reporting must be extended to include reporting of systems failures. Secondly, the scheme must follow the five crucial factors identified by Reason as necessary components of an effective reporting system. A model for this has been provided and should be adopted.
In the interests of early detection of clinical practice which is below standard, powers should be given to the MCNZ to temporarily suspend or place conditions on practice when the public is at risk or when practitioners are believed to be suffering from a mental or physical condition.[155]
The recommendation was supported by 11 submissions. However its successful implementation would not be straightforward.[156] First, the submissions supporting the proposal identify a number of conditions that would have to be satisfied.[157] Secondly, there are already legislative provisions in place which provide for suspension of doctors in appropriate cases.[158] Section 79 of the MPA allows for the suspension of a doctor's registration for up to fourteen days when that doctor is impaired and there is a need to protect the health and safety of the public.[159] Thus, adopting the conditions recommended by the submissions on the Cull Report, Cull's proposal would have the effect of extending the period of suspension for a minimum of six days until an interim hearing could be heard. If it was decided that a suspension should continue, then the amendment will have the effect of extending the suspension further.
Finally, as the recommendation has implications for natural justice, the boundaries of what behaviour constitutes a threat to public safety would have to be construed cautiously in order to prevent undue restrictions being placed on doctors. Thus, the recommendation is supported, but only in accordance with the conditions stipulated in the submissions on the Cull Report referred to above.
As was noted in the introduction to the paper, a failure to understand the role that latent errors and systems failures play in the occurrence of adverse events, is itself a barrier to the timely investigation of complaints and more fundamentally, a barrier to the creation of a robust complaints system for the health sector.
Furthermore, in the case of some adverse medical events it is inappropriate and counter-productive to apportion blame to front-line personnel, as many front-line incidents must be regarded as consequences not causes.[160]
Reason describes the phenomenon accordingly:
rather than being the main instigators of an accident, operators tend to be the inheritors of system defects created by poor design, incorrect installation, faulty maintenance and bad management decisions. Their part is usually that of adding the final garnish to a lethal brew whose ingredients have already been long in the cooking.[161]
As a result, it is the contention of this paper that blame for some adverse medical events should be focused on systems issues, as it is here that the real causes (latent errors and systems failures) of adverse medical events occur.
It is important that the study of latent errors and systems failures is not regarded as an underhand attempt to allow doctors to escape liability altogether. The actions of doctors such as Dr Fahey highlight the fact that on occasion, doctors will engage in harmful behaviour intentionally. Such actions cannot be explained in terms of latent errors and systems failures; rather doctors involved in conscious wrongdoing must bear full responsibility for their actions.
A latent error is perhaps better understood as a condition, as opposed to an active event.[162] This is because latent conditions can lie dormant for some time before they cause an adverse event. Consequently, some would question the need to study these distant factors at all. However, Reason identifies three compelling reasons why latent conditions are important. First, they undoubtedly combine with local factors to breach defences; secondly, potentially harmful features of the environment can be identified and removed before an adverse event occurs; and thirdly, local triggers and unsafe acts (such as forgetfulness and inattention) are hard to anticipate and almost impossible to defend against.[163]
In the health sector, systems issues can give rise to a number of latent conditions which can take many forms. Health policy makers can make bad policy decisions; health funders can allocate resources inadequately; health managers can make poor management decisions; health systems can experience failures, such as losing track of the location of a patient's clinical notes; and health institutions can make poor decisions on matters such as the number and expertise required of staff working on a given shift.
The well publicised death of Tommy Whittaker in 1997 provides an excellent illustration of how latent errors and systems failures, such as those described above, can lead to an adverse medical event. Mr Whittaker was admitted to Taranaki Base Hospital after sliding down a canopy in the entrance to New Plymouth's city centre. After consuming at least a dozen beers and smoking cannabis, Mr Whittaker went up onto the roof of the shopping centre and fell 15 metres off the side onto a concrete buttress instead of sliding down to a 5 metre drop that he anticipated at the front of the canopy. The ambulance officer was told the wrong story from witnesses which he then relayed to the sole doctor covering the emergency department, who was a first year house surgeon, unfamiliar with the management of major trauma. The diagnosis and treatment, including consultation with the senior duty doctor, were influenced by the incorrect story and it was not until later that the staff at the hospital realised Mr Whittaker's condition was far more serious. By then he had brain damage which was irreversible and fatal. There was delay in finding professional people to help and in making the correct diagnosis.[164] Tony Baird, then President of the MCNZ, commenting on the account of the death of Mr Whittaker that appeared in the Daily News, made the following observation:
[the account] singled out the medical staff at the hospital, quite kindly but there was no mention of any responsibility that Tommy himself might have had, his friends, his family, the ambulance people, the local managers whose necessity to make changes and economise directly influenced the care available, nor indeed was the Government mentioned for restriction in funding of health services.[165]
The investigation into the death by the HDC found that the house surgeon had acted competently and appropriately for a doctor at her level of training. However, the nurse responsible, the on-call surgical Registrar and Taranaki Healthcare were found to be in breach of the Code.[166] It is appropriate that responsibility for this tragic event was not placed entirely on the shoulders of front-line medical personnel. However, the HDC's investigation made no mention of the role inadequate funding of health services played in the event. This is to be regretted, as when one analyses the real causes of Mr Whittaker's death, it can be seen that the actions of the front-line medical personnel were not the only significant contributing factors.[167]
The case of Tommy Whittaker highlights an important fact: major disasters are rarely, if ever, caused by one factor. Rather, they arise from an unforseen and usually unforeseeable concentration of several diverse events, each one necessary but singly insufficient.[168] The incorrect information given to the ambulance officer, the decision by Taranaki Healthcare to leave the emergency department under the supervision of a junior doctor are examples of such events. This conclusion is best explained diagrammatically.[169]
A number of points of explanation for the above diagram are required. First, there are two types of hole depicted: latent conditions and active failures. Active failures are immediate and need to be seen as consequences not causes. Latent conditions can lie dormant for some time before coming into line with an accident trajectory.[170] Secondly, the holes within each plane are moving constantly as changes are made in staffing levels, funding, expertise etc.[171] The holes which are caused by active failures move more rapidly than the holes caused by latent conditions. Indeed, in some situations, there will be holes created by latent conditions which will remain open for some years. Some policy and funding decisions will fit into this category. In many cases, these holes will be unavoidable and unfixable, in which case effort should be concentrated on fixing those holes which can be. Thirdly, a clear line of accident trajectory, a 'window of opportunity', will only occur rarely, due to the multiplicity and dynamic nature of the holes that exist within each plane.[172] Finally, in closing one hole, it is important to avoid opening another.[173]
An effective system of investigation, as part of a worthwhile complaints process, must be able to identify the crucial causative role played by factors such as those identified in Mr Whittaker 's case in the occurrence of adverse medical events. In a similar vein, it is interesting to note that in September 2001 the MOH published an amended set of guidelines on 'Reportable Events'. Although focused on events that are to be reported by health professionals, rather than by patient complaints, the guidelines illustrate that the way adverse events are investigated is changing, with the identification of the need to consider 'root causes'.[174] This change is welcomed, and it is hoped that such a change will also occur in the investigation of patient complaints.[175]
Cull recommends that there should be legislative amendment to empower the MCNZ to direct or require relevant information about medical practitioners to be disclosed from the HDC.[176] This recommendation, although appearing extremely invasive of the rights of doctors, in fact merely represents a codification of the HDC's established practice. Section 38 of the HDC Act vests a discretion in the HDC to notify the MCNZ of complaints against doctors. The HDC's uniform practice is to exercise this discretion, when a complaint is referred to the office.
The proposal to ensure this practice continues in the future is supported, as without this provision there is the possibility that the MCNZ may be impeded in performing its statutory function of ensuring the competence of doctors.[177] Furthermore, it is submitted that Cull's recommendation should be extended to include all registering authorities of registered health professionals in New Zealand.[178]
The Cull Report recommends that a CAC must report to the MCNZ, if at any stage of its assessment, it believes that the public may have been put at risk by a doctor whose practice was substandard.[179] Six submissions agreed with this proposal, which has been included in the MPA and HPCA Bills.[180] However, clear guidelines would be required as to what types of event would lead a CAC to take this step.[181] As the recommendation would likely result in the suspension of some doctors, it is supported only on the basis that the suggestions made above in relation to the suspension of practitioners are adopted.[182]
Cull could not be more correct when she states that there is a need for information sharing between organisations, when public health and safety are at risk.[183] To this end, the report makes two recommendations:[184] first, statutory amendment to various Acts to allow for the greater flow of information between key organisations;[185] and secondly, the vesting of an audit function in the HDC giving the HDC access to the databases of key organisations.[186]
The first of these recommendations has already been the subject of much comment and is in broad terms accepted. The second recommendation is more complex. In short, it is submitted that an audit function should exist, but it should exist outside the framework of the HDC.[187] Rather, the writer suggests that an independent health monitoring unit (IHMU) should be established, not to audit the databases of other organisations, but to maintain a database of its own, the details of which will be considered below.[188]
The rationale behind the separation of the IHMU and the HDC is simple. It is inappropriate to have the central co-ordinating agency for the collection and subsequent investigation of complaints also act as the repository of all relevant information for such inquiries. While this might seem to be counterproductive to achieving the speedier investigation of complaints, it is recommended for two reasons.
First, the system would place a check on the powers of the HDC. When the interests of doctors and other health providers are considered, it becomes apparent that these groups have rights during the investigation of a complaint that has been made against them. For instance, if in the course of an investigation the HDC wishes to access information held about a doctor from the ACC MMU, the MPDT or the MCNZ, then it should have to justify to the IHMU the purpose for which it wants such information. This would guard against a number of problems that direct access to all relevant information would present.
Two such problems will suffice by way of example. First, if the IHMU was the repository of all information then this would prevent the use of propensity reasoning in an investigation. Doctors with a prior history of complaints made against them should not have this fact or the details of the prior complaints disclosed in the investigation of a separate complaint.[189]
However, this does not mean that such professionals will be immune from scrutiny if they appear regularly in the occurrence of adverse events. These professionals will be investigated by the IHMU, when the IHMU believes that they pose a risk to the public's health or safety.[190] Secondly, some information held in the repository may be subject to legal privilege, such as the information gathered in a Child Mortality Review Committee hearing.[191] In this case the housing of such information in an independent facility would help to guard against accidental or inappropriate disclosure. The second justification for the proposal is that the IHMU, as well as holding information, would be responsible for analysing it with a view to the detection and prevention of future adverse medical events. The HDC is not well-suited to this task as it already has a huge workload and one that is very much focused on individual complaints. By contrast, the IHMU's focus would be a much broader one, considering long-term trends rather than just matters relating to individuals.[192] This work would be undertaken by analysts working for the IHMU who would have a detailed knowledge of the health sector. These analysts would examine all the information held on the database and then create systems for the prevention of future medical errors, using the techniques discussed below.
As for funding concerns, it is submitted that the IHMU could well 'pay for itself’ by reducing the number of adverse medical events requiring investigation, through the application of the safety devices it creates. In this way, the initial costs of the IHMU need to be viewed as an investment which would be recouped in the future by savings made through the overall reduction of adverse medical events.
The importance of considering the issues of error detection and prevention in creating an effective complaints process cannot be overstated.[193] Indeed, Jamieson has identified that in addition to three other wants, complainants want 'some assurance that efforts will be made to ensure that what happened to them will not happen to anyone else'.[194]
In incorporating error detection and prevention into an effective complaints process, it is appropriate to begin by considering a number of observations made by Reason, about the universal techniques which can be used to detect errors.[195] First, there is the self-monitoring of errors.[196] In the health sector, this means front-line personnel detecting, and hopefully correcting, relatively minor errors as they occur.[197]
The next detection technique is environmental error cueing.[198] The most unambiguous way in which the environment can inform an individual that they have made an error is to block their onward progress. Such blocks can occur naturally, or can be built into a system intentionally. For instance, if a surgeon wished to operate on a patient, a natural block to this would be the patient dying prior to surgery. A block built into the system, would be a requirement for the surgeon to first seek a second opinion as to whether surgery should be undertaken in that case.
Reason notes that it is important for systems blocks, or 'forcing functions', to occur at an early stage so that they prevent the commission of an act which will lead to an error. In addition, for such blocks to be effective, individuals encountering them must respond to them rationally. In other words, the individual must not attempt to avoid the forcing function so as to continue that individual's course of action.[199] In order to prevent errors occurring in the future, one of the tasks of the IHMU's analysts would be to create and implement systems blocks in chains of behaviour that have resulted in errors in the past. Such blocks could take a number of forms. For instance, physical blocks such as access codes or keys could be introduced in situations such as the restriction of access to the morphine cabinet to only qualified persons. In the context of automated care, a system of warnings and self-correct functions could be introduced, such as to prevent the accidental shutdown of a life-support system. Thirdly, the occurrence of errors can be detected by other people.[200] In a complex surgical procedure, for example, it may take 'fresh eyes' to detect the existence of an error. This is because some individuals can become fixated on what they believe to be reality, when in fact the true nature of the situation can be quite different. The IHMU's analysts could develop protocols to assist here as well. For instance, a system could be developed whereby surgeons conducting particularly complex and error-prone procedures could be observed by other surgeons to check for errors that might go undetected by the principal surgeon.
In turning this information into strategies for the prevention of errors, a number of points can be made. First, it is important that detection methods are employed at an early stage in order to catch potential errors in the making. The great problem identified by Reason here is getting accurate information and then interpreting it correctly.[201] Thus, individuals compiling information about a complaint need to be familiar with the areas of the health sector they are investigating. Likewise, in order to ensure that effective recommendations are made by the IHMU, its analysts need to be familiar with the areas of the health sector they are analysing. Secondly, when an adverse medical event occurs, it is important to learn the right lessons from it.[202] In Reason's terminology, it is vital that 'fundamental attribution errors' do not occur. In other words, the tendency to place blame on the inadequacies of front-line personnel, rather than on the situation itself should be avoided.[203] Thus, when analysing data on individual adverse events to create strategies for error prevention, the IHMU's analysts must be careful to consider situational, not just personnel factors. As a result, it will be important for complaint investigations and reportable events to include information on matters such as the nature of the health institution where the adverse event occurred, the funding that institution receives, the institution's staffing levels, any management difficulties the institution is experiencing and any other systems issues. Cull's recommendations for identifying patterns of adverse medical events centre on 'medical mishap' and 'medical error'.[204] Cull recommends that multiple medical mishap claims concerning a doctor should be investigated by the HDC. This runs the risk of making a fundamental attribution error, as 'mishaps' if defined correctly, are not situations where it is appropriate to attach blame to individual personnel. A better proposal would be to have the IHMU's analysts consider all substantiated medical mishap cases in order to detect trends across the health system.[205] This approach would seem to be more likely to result in the successful prevention of future adverse events.
It is clear that in designing an effective complaints process, the issues of error detection and prevention must be considered. Primarily, this is because the process of investigation must provide for the gathering of information concerning situational factors and systems issues. It is the gathering and subsequent analysis of this information which is crucial in reducing the number of future adverse medical events. Furthermore, it is argued that the appropriate organisation to undertake the role of error detection and prevention is not the HDC but the IHMU. The IHMU's analysts are independent and have the required focus to consider adverse events with a view to preventing them in the future.
Section 62 HDC Act enables the HDC to require any person to give information to a matter under investigation. If a person refuses, the HDC may summons the person for examination.[206] However, there is no provision for the HDC to enforce the power under s 62 in the event that a person does not disclose the information. As a result, Cull recommends that some form of enforcement procedures should be given to the HDC for a failure to comply with requirements made pursuant to s 62.[207]
This is a potentially dangerous recommendation and is rejected. The HDC already has a mechanism open to him for obtaining such information, through the issuing of proceedings in the District Court.[208] While this might be inconvenient for the HDC, it provides an important check on the HDC's investigations from the perspective of doctors and other health providers. If implemented, the recommendation could erode the right against self-incrimination. For instance, if information held by an individual is vital to an HDC investigation, but is also highly incriminating of that individual, then it is appropriate that the individual should not be compelled to disclose it, as is the case for all those who are arrested, detained or charged with an offence.[209] While free and frank disclosure is to be encouraged in building a culture of disclosure, it is recognised that such a culture will always have its limits, due to the fact that in general it is counter to human nature to self-incriminate. A successful complaints process cannot hope to change this and therefore must be designed around this limitation.
Cull's consideration of term of reference 2 features a discussion of the need for a 'centralised information system'. As this is of direct relevance to much of the material considered under term of reference 3, the two sections will be analysed as one.[210] Under term of reference 2 the following conclusion is reached:
The lack of a centralised information system, containing relevant information about accepted claims or proven complaints by a practitioner, impedes a timely identification of a practitioner whose practice is below acceptable standards.[211]
By way of remedy, Cull recommends under term of reference 3, that the HDC should become the repository of:
• complaints of breaches of the Code against health professionals;
• breaches of the Code which have occurred and the named health professional;
• guilty findings from the MPDT;
• medical error findings from ACC; and
• medical mishap claims where health or public safety is at risk, such notification to be at the discretion of ACC.[212]
The proposal for the establishment of a repository of such information has already been cited with approval in this paper. However, as was explained above, the proposal to have it controlled by the HDC is rejected. Instead, the writer's suggestion is that an IHMU should be established to maintain such a database.[213] In addition to this change, Cull's database proposal needs amendment in other respects as well.[214]
Before these amendments are considered, it is necessary to begin with an analysis of the purpose for creating such a database, as this will impact on the nature and format of the information contained within it. In order to maximise the database's utility, it should be multi-purpose. First, it should be used to identify high-risk registered health professionals. However, this purpose must be carefully monitored so that the database does not become a repository of evidence which is then used inappropriately in the investigation of individual complaints.[215] Secondly, the database should have the additional, and in some respects more important purpose, of assisting the IHMU with the detection and prevention of future adverse events.
The main problem with Cull's database arises out of the type of information she suggests should be recorded. A number of concerns are raised. First, Cull wants all complaints of breaches of the Code against health professionals to be included. This is both undesirable, because it will see unsubstantiated complaints recorded; and impractical as it will result in an unmanageable volume of entries included. As a result, only substantiated claims should be recorded on the database.[216]
Secondly, Cull proposes that all medical error findings from ACC and those medical mishap claims where health or public safety is at risk, such discretion to be exercised by ACC, should be recorded. Cull's recommendation was drafted in accordance with clause 258 of the then Injury Prevention, Rehabilitation, and Compensation Bill.[217] That Bill has now been enacted and comes into force in April 2002. The Injury Prevention, Rehabilitation, and Compensation Act 2001 (IPRC Act) requires ACC to report any incident it accepts as medical error to the relevant registration body and the HDC and to report medical mishap trends to the relevant registration body, the HDC, the Director-General of Health or the employer of the health professional.[218]
Put simply, if the database is to achieve its purpose of detecting and preventing future adverse events, it needs to include all accepted claims for medical misadventure.[219] The NZMA in its submission on the Cull Report stated that they thought the reporting of medical mishap findings was unfair on doctors.[220] However, this concern could be accommodated by amending the IPRC Act to provide for the reporting of all medical errors to the IHMU for inclusion on the database and the same to occur for all medical mishaps, although only after they have been de-sensitised. This is because if classified correctly, mishaps disclose no fault on the part of the professional.[221] Medical errors would not be de-sensitised, as a true finding of error in that context does involve an element of fault on the part of the registered health professional and thus it is appropriate that such professionals be identified.[222] Accounts of medical mishaps would not include names. However, in order for these records to be useful, they would most probably need to include a description of the patient involved and possibly the nature of the institution where the mishap occurred.[223]
Thirdly, Cull's proposal makes no provision for the reporting of 'near-misses'. Reason has commented on the need to disseminate incidents of near-misses as widely as possible, as they provide 'free lessons'.[224] The successful reporting of near-misses would hinge on the same five critical factors identified in relation to the mandatory reporting of doctors discussed above.[225] Thus, if near-misses were reported and included on the database, they could then be disseminated by the IHMU's analysts as appropriate. Such entries should be de-sensitised before inclusion on the database, as their function is to educate, not embarrass or prejudice.
Finally, Cull's proposal makes no mention of the express inclusion of adverse findings about systems issues which have a potential bearing on the safety of patient care. If such findings are reached in the investigation of complaints, and potentially the investigation of 'reportable events' as well,[226] then they should be recorded separately for analysis by the IHMU's analysts into future error detection and prevention. Database access also raises problems. It is envisaged that organisations wishing to access information on the database should have to apply to the IHMU on a case by case basis.[227] It is expected that the MOH, HDC, ACC MMU, MCNZ, MPDT, and other health professional registration boards would form the bulk of applicants. However, there are two other groups whose access to the database would have to be closely scrutinised: employers of registered health professionals and health professional indemnity insurers. The desire of insurers to access such a database is well highlighted by the experience in New South Wales.[228] The risk of these groups wanting to access the database to check to ensure that they are not employing or insuring high-risk professionals, would be reduced by the de-sensitisation of all information recorded, except that which reveals genuine error on the part of individuals. Hopefully this scenario will not arise often, but if it does, then at least registered health professionals will be comforted by the fact that only substantiated complaints revealing actual error on their part will be recorded by name.
The further question of consent to the inclusion of information on the database can be dealt with with relative ease. Rule 3 of the HIPC would allow for the disclosure of information relating to complaints as long as the fact that the complaint, if substantiated, would be included on the database, was disclosed to the complainant when the complaint was lodged.[229] Therefore, the HDC in accepting complaints for investigation should inform the complainant that de-sensitised information about their complaint may be included on the database.[230]
Problems of consent in relation to the disclosure of a registered health professional's identity are avoided by simply making it a requirement of registration that a professional consents to the disclosure of their identity on the database in any cases of proven error on their part. After all, one of the purposes of the database is to monitor repeat-offenders.
The question of confidentiality of health information and statutory protection for disclosure of it, is considered separately as it relates generally to both the disclosure of information on the database and the disclosure of information among organisations. As a result of the Privacy Act 1993 and in particular the HIPC, there has been considerable concern in the past amongst organisations about disclosing health information. According to Cull, this has resulted in 'little or no information sharing or co-ordination among the ACC, HDC and MCNZ'.[231] By way of solution, Cull recommends that:
statutory protection should be enacted to enable information including patient records to be disclosed by HDC, the Medical Council, ACC and the MPDT to each other, or to any other appropriate agency, on the grounds of public health or safety.[232]
Rule 1 1(d) of the HIPC specifically permits disclosure which is necessary to prevent or lessen a serious and imminent threat to public health or public safety or the life or health of an individual. However, the scope of this is not broad enough to encompass the free-exchange of all information on the database. Thus, consent to disclosure is required in accordance with Rule 3 of the HIPC. For the purposes of general information sharing among the relevant organisations, statutory amendment along the lines suggested by Cull is required.[233] Such statutory amendment in fact represents one step towards the creation of a culture of disclosure as discussed above in relation to mandatory reporting.[234] The arguments relating to the establishment of a culture of reporting apply just as much in the context of the database, and general information sharing between organisations, as they do in the context of mandatory reporting.[235]
The proposal for the establishment of a national database, to be controlled by the writer's proposed IHMU, is supported. The information recorded on the database should be amended as suggested, and statutory amendment should also occur to provide protection for the disclosure of information among relevant organisations. Unfortunately, however, it may be that the database proposal will not proceed. The MOH has commented recently that
a single database is not favoured because it would have a significant fiscal, resource and security implications, and would potentially be unwieldy due to the 15,000 complaints it is likely to record, many of which would be "minor" in nature.[236]
This decision is unfortunate given the highly useful role such a database would play in the detection and prevention of future adverse medical events.
The MPA Bill contains a provision which would compel doctors to undergo competency reviews as required by the MCNZ.[237] This recommendation is supported for relatively minor issues, as they are well suited to being dealt with at a low level by a practitioner's peers. Such reviews are correctly regarded as being within the province of the MCNZ as, if such reviews were removed to the HDC, then, as noted by the MCNZ, '[this] would exclude the opportunity for the profession to openly discuss and learn from mistakes for fear of disciplinary action' .[238] Furthermore, the concept of competency reviews should be extended to other registered health professionals and such reviews should be conducted under the auspices of the appropriate registering authorities, rather than by the HDC.
The HPCA Bill provides for the establishment of a single disciplinary tribunal for all registered health professionals.[239] In supporting this proposal, Cull makes the following comments:
In a number of cases, adverse medical outcomes can occur as a result of a multi-disciplinary team approach and hearings in respect of disciplinary charges have had to be conducted in three or more separate hearings. This Review has identified a need for patients to know of one complaint mechanism which will deal with all aspects of the complaint in a co-ordinated manner. For this reason, it would seem appropriate that a Disciplinary Tribunal or Court should be established with a Judge as a chairperson to determine disciplinary matters consistently for all registered health professions.[240]
These comments give rise to a number of problems. First, there appears to be a flaw in Cull's logic. Just because patients need to be able to identify one complaints process, does not mean that there should only be one disciplinary process. The two processes are distinct in function and do not create patient confusion, as it is not the patient who issues disciplinary proceedings, but the relevant professional's registering authority.
The second problem is the suggestion implicit in Cull's statement, that where a number of members of a multi-disciplinary team of registered professionals are prosecuted on disciplinary charges arising out of the same adverse event, the whole team could be tried together before a single disciplinary tribunal.[241] This scenario is potentially undesirable. While co-defendants to a criminal charge may be tried jointly, the situation here is quite different. For instance, in the case of an unexpected patient death during an operation, the surgeon may be charged with 'disgraceful misconduct', while the anaesthetist may be charged with 'conduct unbecoming' and the theatre nurse may be charged with 'professional misconduct'.[242]
If these three charges were to be heard together a number of problems would arise. For instance, how would the tribunal be composed to ensure that the professions of all three defendants were represented in a balanced manner with professionals of sufficient expertise and who had an intimate knowledge of the working conditions of the professionals concerned?[243] Would medical professionals be able to appreciate the differences between the three charges, particularly when they relate to a defendant from another profession to their own? How would the tribunal separate the acts of the three individuals, when the only witnesses are the three defendants, and each defendant seeks to blame the actions of the other defendants for causing the patient's death? These questions are not easily resolved in the context of a single trial of all three professionals before a single disciplinary tribunal.
Thirdly, the establishment of a single disciplinary body would result in the loss of the institutional knowledge and experience held by the current disciplinary tribunals.[244] This is a significant drawback, as such knowledge and experience play a crucial role in the determination of innocence or guilt. In the case of smaller regulatory bodies, access to a common disciplinary tribunal may also create delays and extra costs.[245] Thus, Cull's goal of seeing the complaints process move more quickly would be thwarted to some extent by this factor.
Turning to the question of the powers of a single disciplinary tribunal, most of the submissions disagreed with the proposal to give the tribunal the power to act as a CRT.[246] The need to keep the functions of discipline and compensation separate as a matter of principle has already been identified above in relation to the discussion of the CRT.[247] Furthermore, as a matter of practicality, the ability to award damages and reimburse loss to patients is outside the existing tribunals' expertise.[248] Finally, problems arise with the judicial composition of a single disciplinary tribunal. Cull proposes to have a District Court Judge chair the tribunal.[249] This would mean that appeals would go to the High Court and/or the Court of Appeal. While this would presumably provide a better standard of adjudication, it would also increase costs and the formality of hearings and procedures and would reduce accessibility.[250] Six submissions felt that the tribunal should be chaired by a High Court Judge .[251] Presumably this would result in appeals being heard by the Court of Appeal, which would raise even greater problems of cost and accessibility.
Having a judicial officer chair the tribunal also raises the question of where 'control' of the tribunal would lie — with the MOH, as is currently the case for the MPDT, or with the Department for Courts?[252] The answer to this question would have significant ramifications for the funding of the tribunal and its independence.[253]
In addition, it is necessary to consider the role of professional and lay representatives on the tribunal. The more senior the chair of the tribunal, the less appropriate it is to have additional professional, and particularly, lay membership. Also, the hearing of charges against multiple defendants of different disciplines, as highlighted above, demonstrates the complexity of selecting a panel of professionals in such a case.[254] In summary, Cull's proposal is effectively for a specialist District Court, involving some additional professional and lay membership. Cull believes that the establishment of such a tribunal will streamline the complaints process. It will not; rather, it will simply disturb the current disciplinary process which is working well in its current multi-tribunal format. Accordingly, the proposal for a single disciplinary tribunal should be rejected.
This section of the report is, in effect, a summary of Cull's key conclusions and recommendations. As a result, this section of the paper will only touch on issues not already discussed elsewhere in the paper.[255] After reviewing the most significant problems with the complaints process, Cull outlines the details for her 'one-stop-shop' proposal.[256]
The proposal is supported by this paper only in so far as it relates to the creation of a 'portal' in the form of the HDC's office, through which all patient complaints must pass. However, this paper does not support the streamlining of the investigation, discipline, compensation, detection and prevention functions involved in the complaints process, into one agency. To do so would be to misunderstand the fundamental differences inherent in these processes, not to mention the fact that it would also add expense, delay, and a loss of independence and expertise to the existing processes. Indeed, the 'streamlining' of all these processes into one agency, would probably have the effect of undermining the very aim at the heart of the proposal: the speeding up of the complaints process. Furthermore, Cull is rather vague on exactly who would investigate the complaints referred to the one-stop-shop, with the inference being that it would be the one-stop-shop itself which would carry out this function.[257] This should be rejected, as while there should be a one-stop-shop for the laying of complaints, their investigation should be carried out by the most appropriate organization to do so, to be determined on a case by case basis. Indeed, the MOH has recognised that registration bodies, ACC and the HDC, all have different roles and, therefore, different investigation requirements.[258] Thus, in triaging complaints it will be appropriate for the HDC's case managers to refer some complaints to the HDC for investigation. However, complaints concerning medical misadventure should be referred to the ACC MMU, and complaints raising professional competency issues should be referred to the appropriate registering authority for investigation. In addition, it appears that the MOH also doubts the desirability of the proposal for a one-stop-shop.[259] In this event, it is submitted that the proposed changes to the HDC Act, in conjunction with the proposals for the MPA and HPCA Bills, and the recently enacted IPRC Act, should be amended as suggested by this paper, in order to create a more efficient complaints system than that proposed by Cull.[260]
It should be noted also, that despite the rejection of Cull's one-stop-shop for the most part, this paper supports an increase in funding to the HDC office.[261] Such an increase will be required to ensure that the HDC is able to perform its portal role effectively and not slow down the complaints system.[262] The rejection of much of the one-stop-shop also does not include the rejection of the centralised national database. The database is endorsed, but only on the condition that it is controlled by the IHMU, to be established for this purpose.[263] Cull states that the database should include a flag system which identifies recurring names and patterns within the system.[264] Once again, this highlights Cull's focus on using the database to apportion blame to frontline personnel who continue to feature in adverse medical events. While this undoubtedly will be one role of the database, the database should be expanded to include information about situational factors and systems issues surrounding adverse medical events. In this way, it will become an invaluable tool for error detection and prevention and will see blame apportioned appropriately.
In the executive summary to the report, Cull identifies that the current complaints process is not working for patients.[265] This conclusion is not disputed. However, in designing an effective complaints process for patients, it needs to be borne in mind that the current complaints process is not working for doctors, or other health providers either.[266] Cull's recommendations on the whole fail to take account of this. Fundamentally, Cull believes that the best way to solve the problems with the current complaints process is to combine all the current systems together under the auspices of the HDC. What this paper has tried to demonstrate is that simplification is not always best achieved by streamlining. In fact, some of Cull's recommendations would seem to achieve quite the contrary — adding extra time delays and costs, if not for patients, then certainly for registered health professionals. More importantly than this, however, the undesirable nature of some of Cull's recommendations lies in her attempt to run some processes together which simply cannot operate effectively in this way: complaint investigation, discipline, compensation and error prevention. Not all of Cull's recommendations are rejected. The proposal for the establishment of a national database is an excellent one, which should lead to the prevention of many future adverse medical events, if implemented as advocated by this paper. So too, the provisions for the mandatory reporting of doctors believed to be practising below an acceptable standard, is another recommendation which, if extended to include the mandatory reporting of systems failures and implemented amongst a new culture of reporting, will also lead to a better complaints system.
The writings of James Reason on latent errors and systems failures, error detection and prevention and the establishment of a safety culture have been important in this paper. They demonstrate that there needs to be a fundamental change in the way medical errors are perceived by society, as the culture of blame which prevails in New Zealand is stifling the development of a truly first class complaints system.
The recommendations in the Cull Report, particularly those that are to be included in the HPCA and HDCA Bills, when drafted, together with the proposed amendments to the MPA Bill, are a step in the right direction, in so far as they indicate a willingness to embrace reform of the statutory framework for patient complaints. However, much of the contents of these amendments is unsatisfactory and requires change. It is hoped that change along the lines advocated in this paper is forthcoming, so that a robust complaints system can be developed for the benefit of patients, registered health professionals and society as a whole.
The Government has developed draft legislation to improve the framework for occupational regulation of health professionals, including processes for reporting and investigation of adverse incidents.
A key issue for the Government is that agencies can identify patterns of adverse medical outcomes to ensure speedy response and action on incidents. Another key issue is the adequacy of patient complaint mechanisms. There may be situations where concerns about medical competence could have been brought to light and hence acted on earlier. The Government wishes to carry out a review of current processes to ensure the new legislation, when finalised, will better protect the public so that adverse medical outcomes can be identified and appropriate remedial action taken in a timely fashion.
"You are required to review the relevant legislation concerning the Health and Disability Commissioner, the Medical Council of New Zealand, the Medical Practitioners Disciplinary Tribunal and the ACC Medical Misadventure Unit. Following the recent publicity of the events in Northland and with reference to other relevant examples which may be brought to your attention, in order to inform the general review outlined below, you are required to examine how the agencies responded to consumer complaints, how they interacted and whether their actions were co-ordinated and timely. It is anticipated that you will need to interview patients (with their consent) about their personal experience of the complaints system. Your review must not interfere in any way with relevant current or impending proceedings, including those of the Medical Council of New Zealand. A written report is required by 12 March 2001 on:
(i) What lessons can be learned concerning:
1. the processes and timeliness of investigation(s) of medical practitioners undertaken by the Health and Disability Commissioner, the Medical Council of New Zealand, the Medical Practitioners Disciplinary Tribunal and the ACC Medical Misadventure Unit;
(ii) Any legislative, regulatory or procedural changes which could ensure that adverse medical outcomes are identified and appropriate, timely remedial action is taken, having regard to the changes proposed in the Medical Practitiones Amendment Bill, the Health Professional Competency Assurance Bill, and the Mortality Review proposals in the New Zealand Health and Disability Bill.
2. any regulatory and institutional barriers that may exist which impede the timely identification and investigation of adverse medical outcomes by medical practitioners;
3. any regulatory and institutional barriers to information sharing and co-ordination regarding adverse medical outcomes, between the agencies identified above;
4. any improvements necessary to allow patients better to identify and access patient complaint mechanisms.
(iii) Any further relevant recommendations."
Since this paper was submitted in 2001 the law has developed in a number of areas that are touched on in this paper.
First, on 1 April 2002 the Injury Prevention, Rehabilitation, and Compensation Act 2001 came into force. That Act repealed the Accident Insurance Act 1998, which was in force at the time the paper was written. Wherever references to sections of the 1998 Act appear in the paper, the author has included footnote references to the corresponding sections of the 2001 Act.
Secondly, there have been developments with the Health Professionals Competency Assurance Bill. The Bill has been renamed the Health Practitioners Competence Assurance Bill and has begun its journey through the House of Representatives. The renamed Bill was introduced into the House on 11 June 2002 and had its first reading on 15 October 2002. The Bill was referred to the Health Select Committee for consideration, and the Committee reported back to the House on 16 May 2003. The Bill was read a second time on 31 July 2003 and could be enacted by the time the paper is published.
If enacted, the Bill will implement a number of the recommendations made by the Cull Report. One such recommendation is the establishment of a single disciplinary tribunal for all registered health professionals in New Zealand. This recommendation is discussed at length in the paper. Unfortunately, a comprehensive review of the revised Bill and in particular, a discussion of its passage through the Health Select Committee, falls outside the scope of this postscript. However, the author wishes to ensure that readers are aware of the progress of the Bill to date and to alert readers to the fact that the paper was written prior to these developments.
[*] The author is a Clerk to the Judges of the High Court of New Zealand, at Wellington. This paper was written in 2001 as part of the undergraduate Honours programme. See the Postscript that follows the paper for a discussion of recent developments in the law that have occurred since the paper was submitted in 2001.
[1] The immediate catalyst for the review was brought about as a result of the Gisborne Cervical Screening Investigation and the inquiry into complaints of medical misadventure made by the patients of Northland Obstetrician and Gynaecologist, Dr Graham Parry. See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events (2001) Executive Summary.
[2] See H Cull, Review of Processes Concerning Adverse Medical Events (2001). Note: the Terms of Reference for the Cull Report are included in this paper as Appendix 1.
[3] Note, between March and May 2001, the Ministry of Health released the report as a public discussion document to enable wider consultation and fuller comment on its recommendations. 51 submissions were received. See Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1.
[4] The 51 submissions received on the Cull Report do contain commentary, however, all of these submissions were received from bodies involved in the provision of health care services. See Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, Appendix 1 lists the bodies which made submissions. By contrast, this paper is created from a perspective external to the health care system, and thus represents a unique consideration of the recommendations made in the Cull Report.
[5] It should be noted that a number of bulletin style articles reporting the release of the Cull Report have been published. However these contain very little analysis of the recommendations made in the report. For a sample of these articles, see Phillips Fox, 'Cull Report released in New Zealand' (2001). See www.phillipsfox.com.au; P St John, 'Cull report contains snares for doctors' (Date unknown) New Zealand Doctor 4; G Phipps, 'Cull report reinvents investigative wheel' (25 April 2001) New Zealand Doctor 27.
[6] Note: Not every conclusion and recommendation contained in the Cull Report will be analysed in this paper. Such an exercise is beyond the scope of this paper.
[7] See J Reason, Human Error (1990) 173; J Reason, Managing the Risks of Organizational Accidents (1997) 126, 127.
[8] There are a number of other related topics which fall outside the scope of this paper. Most notably are the following topics: actions for exemplary damages taken against registered health professionals and employer investigations of adverse medical events that arise independently of the patient complaints process. For more information on employer investigations, see the Ministry of Health, Reportable Events - Guidelines (2001); the Ministry of Health, Toward Clinical Excellence: Learning from Experience - A Report to the Director-General of Health, Sentinel Events Working Party (2001).
[9] Reason, above n 7.
[10] See Part VI.
[11] Ibid.
[12] See Part VII.
[13] Note, these topics are mentioned briefly elsewhere in the report. See Cull, above n 2, 88.
[14] This is not to downplay the significance of other groups of registered health professionals practising in New Zealand. Much of the Cull Report applies to these other groups, however, a full consideration of the Cull Report's implications for all registered health professionals falls outside the scope of this paper. Other registered health professionals will be considered briefly in the paper, particularly in relation to Cull's proposal for a national database, see Part VII and the proposal for a single disciplinary tribunal, see Part VIII.
[15] See the Ministry of Health, The Cull Report (December 2001) (2001) 3. The Ministry also notes that Parliamentary Counsel have completed a first draft of the HPCA Bill and the HDCA Bill is presently being drafted. For more general information on the HPCA Bill, see the Ministry of Health, Health Professionals' Competency Assurance Bill Discussion Paper (2000). [See also the Postscript that follows this paper, which describes recent developments with the HPCA Bill that have occurred since this paper was submitted in 2001.]
[16] Jamieson has noted that in his opinion, the growth in medical consumerism is part of a growing awareness of consumer rights, rather than a case of the medical community being singled out for special attention. See M Jamieson, 'Complaints - A Doctor's Perspective' (Brookfield's Medical Law Symposium, Auckland 1, 11 June 1999). Whether or not this is the case, the fact remains that there has been an increase of public awareness in the arena of the accountability of health professionals.
[17] See R Stent, Canterbury Health Limited - A Report by the Health and Disability Commissioner (1998).
[18] See G Rossiter, 'Cross-Disciplinary Standards in Health Services' (2000) New Zealand Law Journal 193. Note, although Rossiter's comments extend to health providers other than doctors, this paper will focus primarily on doctors.
[19] See R Paterson 'The Health and Disability Commissioner' (2001) New Zealand Law Journal 224.
[20] For example, the establishment of the Medical Misadventure Unit of the Accident Compensation Corporation and regional ethics committees has in part been driven by this change in public attitude.
[21] See Consumer magazine, 'Wrapped in red tape' (May 2001) 403 Consumer 6.
[22] For a general discussion of the case of Dr Parry see Paterson, above n 19, 226. For a more detailed discussion of Parry v Medical Practitioners Disciplinary Tribunal DC Auckland, 30 May, Judge Hubble, see N Peart, 'Medical Law' (2001) New Zealand Law Journal 333. For a more detailed discussion of Bottrill v A [2001] NZLR 622 see N Peart, 'Medical Law' (2001) New Zealand Law Journal 333; R Tobin, 'Torts' (2001) New Zealand Law Journal 335.
[23] For an interesting comparison of the way the issue of the accountability of medical practitioners is treated in the United Kingdom, see P Allen, 'Accountability for clinical governance: developing collective responsibility for quality in primary care' (2000) British Medical Journal, 321: 608-11. Unfortunately a detailed comparison of the systems of accountability for medical practitioners in the United Kingdom and New Zealand falls outside the scope of this paper.
[24] See A Paltridge, 'Health system ill from complaint culture - doctor', Evening Post, Wellington, New Zealand, 10 December 2001, referring to a comment made by the Medical Protection Society.
[25] See W Cunningham, ‘The effect on medical practice of disciplinary complaints: potentially negative for patient care' (2000) New Zealand Medical Journal 464.
[26] Ibid 467. Note: as a result of these findings, Cunningham calls for a review of the current complaints process and for further analysis of the adverse impact on the practices of doctors who are the subject of complaints.
[27] Paterson, above n 19, 225.
[28] See W Brandon, 'Complaints Against Medical Practitioners' (2001) New Zealand Law Journal 249, 251.
[29] Paterson, above n 19, 225.
[30] Jamieson, above n 16, 3.
[31] Note: the Terms of Reference for the Cull Report have been included in the paper as Appendix I.
[32] Note: in addition, The Ministry of Health's summary of submissions on the Cull Report noted that there was concern expressed in a number of submissions that there was no requirement in the terms of reference to outline exactly what it would cost to implement the proposed recommendations. See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 4, 5.
[33] Cull, above n 2, 30. Note also: Phipps states that in fact there are more than fourteen agencies which can investigate an adverse medical event. See Phipps, above n 5, 27.
[34] Ibid 15.
[35] Jamieson, above n 16, 3.
[36] Cull, above n 2, 31. This section is based on evidence found by Cull after consultation with a number of consumer groups and after having outlined the well-publicised case of midwife Jean O'Neill as an example of the problems with the current complaints process.
[37] Cull, above n 2, 38.
[38] Ibid.
[39] Ibid 34.
[40] The MPS cite the prevalence of written information in doctors' waiting rooms and the HDC's 0800 telephone number as illustrations of the fact that there is already adequate information in the public arena concerning the complaints processes. See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 4.
[41] These initiatives include: the dissemination of written information through doctors' surgeries, the Citizens Advice Bureau, Health Advocates, IHC Advocacy Services, tertiary institutions, women's magazines, on a web-site, on television and on fridge magnets. See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 4. Added to this list, this paper recommends the use of Community Law Centres, radio advertisements and public seminars.
[42] Cunningham, above n 25, 466.
[43] Cull, above n 2, 35.
[44] Ibid 106.
[45] Ibid 112.
[46] Ibid 39.
[47] Ibid 49-51. See commentary on this point in J Manning 'Health Care Law' [2001] New Zealand Law Review 189, 194.
[48] Paterson, above n 19, 224.
[49] Cull, above n 2, 40, 51. Note: in the case of low-level complaints, the HDC may refer these to an advocate for the purpose of resolving the complaint by agreement between the parties. The HDC may also decide to take no action in some circumstances specified in sections 35, 36, and 37(1) Health and Disability Commissioner Act 1994 (NZ).
[50] Ibid 52.
[51] Ibid 51.
[52] See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 5.
[53] See the Ministry of Health, The Cull Report (December 2001), above n 15, 3.
[54] See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 5.
[55] If the lay observer model was favoured over that of the legal assessor, a useful template may be that of the lay observers who review the way in which district law societies deal with complaints made against lawyers. The functions of these lay observers is contained in section 97 Law Practitioners Act 1982 (NZ). For a discussion of the work of these observers, see D Webb, Ethics Professional Responsibility and the Lawyer (2000) 137.
[56] This system would minimise potential concerns that some complaints may not be fully investigated. Concerns that the HDC might investigate too many complaints would not be alleviated by this proposal, however such concerns are rejected outright as the more complaints that are investigated, the more likely a better understanding of medical errors will result.
[57] See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 5. See in particular the submissions of the NZMA and the School of Pharmacy at the University of Otago.
[58] Note also that this recommendation does not mean that the HDC office will carry out all investigations itself. In some cases, investigations will be carried out by other organisations. See discussion in Part IX.
[59] See the submission of the Royal Australian and New Zealand College of Psychiatrists in the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 5. 60 See Health and Disability Commissioner Act 1994 (NZ) ss 35, 36, 37(1), 45.
[61] New Zealand Law Society, Rules of Professional Conduct for Barristers and Solicitors (6th ed). See www.nz-lawsoc.org.nz.
[62] This criticism was also made by the NZNO - see the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 5.
[63] Cull, above n 2, 42.
[64] Paterson, above n 19, 226.
[65] Cull, above n 2, 42.
[66] See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 7.
[67] Ibid.
[68] Paterson, above n 19, 225.
[69] For a discussion on the use of public statements see Paterson, above n 19, 225. It is submitted that Paterson should take a less cautious approach to the naming of parties in public statements and in so doing follow the example set by his predecessor.
[70] Health and Disability Commissioner website, 'Clarification of the role of the Director of Proceedings' see www.hdc.org.nz.
[71] Ibid.
[72] Cull, above n 2, 43.
[73] Ibid.
[74] Brandon, above n 28, 252. Incidentally, Brandon notes that the system in New South Wales was the model for the New Zealand HDC Act.
[75] Cull, above n 2, 43-4.
[76] A point noted with regret by Manning, above n 47, 194.
[77] The Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 5.
[78] In fact it is submitted that it was inappropriate for Cull to make this recommendation without having considered such important details as; what threshold would be required for a complaint to be referred immediately to the DP? What happens if a complaint is referred to the DP and it is then not deemed by the DP to be suitable for prosecution?
[79] Section 49(3) Health and Disability Commissioner Act 1994 (NZ) requires the DP to balance the wishes of the complainant and the public interest when deciding whether to pursue a prosecution. See the Health and Disability Commissioner website, above n 70, 4, for a discussion of the issue.
[80] Cull, above n 2, 46. Note: currently a complainant can only take proceedings before the CRT if their complaint is referred to the DP and the DP decides not to prosecute. See commentary in the report at 44.
[81] The Ministry of Health, The Cull Report (December 2001), above n 15, 3.
[82] Brandon has said that the enactment of section 49(3)(d) and (e) was presumably intended to address this problem. Brandon, above n 28, 251.
[83] The Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 6. This submission is supported by Phipps, as noted in St John, above n 5 and is stated by Phipps herself, above n 5, 27.
[84] This point was made by the MPS, see the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 6.
[85] Phipps, above n 5, 27.
[86] Section 394 AIA states that a person who is entitled to compensation under the Act may not sue for damages in respect of any personal injury that is covered by the scheme of the Act. Note: as of 1 April 2002 s 394 Accident Insurance Act will be replaced by s 317 Injury Prevention, Rehabilitation, and Compensation Act (NZ) 2001.
[87] Adding cogency to this argument is the fact that the current DP has indicated that where the wishes of a complainant and the public interest conflict, she is more inclined to follow the course of action that benefits the public interest. See the Health and Disability Commissioner website, above n 70, 4.
[88] For a summary of the remedies open to the CRT see Cull, above n 2, 44.
[89] Such a desire is evident in a recent action before the CRT concerning the death of a stillborn baby. See A Gregory, 'Tribunal rules couple can sue over baby's death', New Zealand Herald (New Zealand), (22 November 2001).
[90] The Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 16.
[91] Ibid 7.
[92] Ibid.
[93] Cull, above n 2, 48. Note: in addition, Cull stresses the need to ensure consistency and understanding of the mediation process and thus recommends that clear guidelines be put in place to achieve such consistency and understanding.
[94] Ibid 47.
[95] The Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 7.
[96] The Ministry of Health, The Cull Report (December 2001), above n 15, 3.
[97] Brandon, above n 28, 249-50. 98 Ibid.
[99] Ibid.
[100] For the small number of complaints that would be referred to mediation, it is recommended that Cull's proposal for the implementation of clear guidelines be put in place so that there is consistency and public understanding of the process.
[101] Consumer, above n 21, 8.
[102] Cull, above n 2, 53.
[103] Ibid 56.
[104] Brandon citing Paterson. See Brandon, above n 28, 251.
[105] Ibid.
[106] Ibid.
[107] Ibid 252.
[108] Cull, above n 2, 61.
[109] See Part V.
[110] Cull, above n 2, 58.
[111] Ibid.
[112] The Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 13.
[113] Cunningham has stated that the British, European and American literature suggests that the threat of litigation leads to defensive behaviours. Thus, it seems highly likely that the threat of drastic penalties could also have this effect. Cunningham, above n 25, 464.
[114] Cull, above n 2, 61-4. See also D Collins, Medical Law in New Zealand (1992) ch 5.
[115] Cull, above n 2, 64.
[116] See Part VII.
[117] Cull, above n 2, 67.
[118] The ramifications of classifying correctly an event as either an error of a mishap will be explored in greater depth in Part VII of the paper, which considers the principles surrounding the investigation of registered professionals who feature regularly in the occurrence of adverse events.
[119] Cull, above n 2, 67.
[120] This is provided for in s 70 AIA 1998 and is identified in the Cull Report, ibid 64. [Note: as of 1 April 2002 s 70 AIA will be replaced by s 62 IPRC Act 2001.]
[121] The Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 15. Note: Cull does recommend some changes to the ACC MMU under term of reference 4(iii), which are similar in nature to this proposal. See Cull, above n 2, 111.
[122] Cull, above n 2, 68.
[123] Ibid.
[124] The Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 15.
[125] Ibid 16.
[126] Ibid 15. The submission states by way of example, that ACC has already reduced the claims processing ratio for each claims assessor in the MMU from 120 claims open at any time down to 80 claims. For information relating to the financial resources of the MMU, see the Accident Compensation Corporation Annual Report 2001 (2001) 92-3.
[127] Cull, above n 2, 71.
[128] Ibid.
[129] Ibid 74. Note: Here Cull is referring to the study conducted by Cunningham, that forms the basis of Part II of this paper.
[130] Cull, above n 2, 76.
[131] Both of these matters will be expanded upon in this section of the paper.
[132] Cull considers these Bills under term of reference 4(ii). However, an analysis of the mandatory reporting provisions of these Bills will be considered in this section of the paper.
[133] Cull, above n 2, 92.
[134] Note: fewer problems arise in the context of reporting on this ground, rather than reporting on the ground of a practitioner practising below an acceptable standard. As a result, the critique will focus primarily on the problems that arise out of the latter ground for reporting. Note also: the HPCA provides for the mandatory reporting of registered professionals other than doctors. A full consideration of all registered health professionals is outside the scope of this paper.
[135] Cull, above n 2, 92, 97.
[136] The Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 11.
[137] Ibid.
[138] The need to protect junior staff and students was commented upon by one submission on the Cull Report. See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 11.
[139] One submission on the Cull Report wanted to know what defences would be available to those who choose not to report; ibid.
[140] Cull, above n 2, 97.
[141] Phipps, above n 5, 27.
[142] Ibid.
[143] The Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 11.
[144] Reason, Managing the Risks of Organizational Accidents, above n 7, 196. The need to eliminate fear from reporting was also commented upon by one submission on the Cull Report. See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 11.
[145] Reason, Managing the Risks of Organizational Accidents, above n 7, 198.
[146] Reason analyses two reporting programmes, NASA's Aviation Safety Reporting System and the British Airways Safety Information System. Ibid 197.
[147] Ibid.
[148] See Paltridge, above n 24; Jamieson, above n 16, 3.
[149] The power of this Act is limited, however, as it only applies to reporting within an organisation and the focus is on deliberate wrongdoing, rather than on incompetence. Noted by Cull, above n 2, 75.
[150] This approach is recommended by Reason, Managing the Risks of Organizational Accidents, above n 7, 200.
[151] Reports about systems failures could be referred for investigation by the appropriate organisation by the HDC's case managers.
[152] Cunningham, above n 25, 466.
[153] This would occur through as part of the database proposal, to be discussed in Part VII.
[154] Reason, Managing the Risks of Organizational Accidents, above n 7, 202.
[155] Cull, above n 2, 70.
[156] Note: in addition, this section will consider Cull's discussion of the recommendation to allow suspension of professionals pursuant to the HPCA Bill and MPA Bills. This material falls under term of reference 4(ii).
[157] These conditions include: the limitation of suspensions to serious allegations only; the provision of meaningful redress in the event that a claim is unsubstantiated; the payment of salary to the doctor during the suspension and compensation to be payable if the complaint is unsubstantiated; and an interim hearing to be held within 20 days of the commencement of the suspension to see if continued suspension is justified. See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 12.
[158] This point is referred to by Phipps, above n 5, 27; St John, above n 5, records Phipps making the same point.
[159] Note: in addition, s 60 Medical Practictioners Act provides for review of the competence of a professional and can be acted on very quickly according to Phipps, above n 5, 27.
[160] See Reason, Human Error, above n 7, 173; Reason, Managing the Risks of Organizational Accidents, above n 7, 126.
[161] Reason, Human Error, above n 7, 173.
[162] Reason, Managing the Risks of Organizational Accidents, above n 7, 10, 236.
[163] Ibid 236.
[164] This summary of Mr Whittaker's death is compiled from an account of the case in Paterson, above n 19, 226 and an account of the case in T Baird, Complaints Assessment Committee and Medical Council Update (1999) 1.
[165] Ibid.
[166] Paterson, above n 19, 226.
[167] It is submitted that there are four causes in this case deserving of blame. First, the ill-judged actions of Mr Whittaker, secondly, the incorrect information given to the ambulance officer by Mr Whittaker's friends, thirdly, the funding shortfalls identified by Baird, and finally, the management decisions of Taranaki Healthcare identified by Baird.
[168] Reason, Human Error, above n 7, 197.
[169] The diagram is a combination of two diagrams created by Reason, which have been put together and adapted for the health sector by this paper. See Reason Figure 7.8 in Reason, Human Error, above n 7, 208; Figure 1.5 in Reason, Managing the Risks of Organizational Accidents, above n 7, 12.
[170] Reason, Managing the Risks of Organizational Accidents, above n 7, 10.
[171] Ibid 9.
[172] Ibid 11.
[173] Ibid 52. For instance, if Taranaki Healthcare decided as a result of the Whittaker case to place three doctors instead of one in the emergency department by removing two doctors from the oncology department, another hole would simply develop in relation to staffing levels in the oncology department.
[174] See the Ministry of Health, Reportable Events - Guidelines, above n 8, Appendix C.
[175] The challenging question of how to detect and prevent such latent conditions from occurring will be analysed in Part VII.
[176] Cull, above n 2, 79.
[177] Ibid 78.
[178] There seems no valid reason why the MCNZ should have greater powers to access information relating to the competence of its members than other professional bodies in this country.
[179] Ibid 79-80.
[180] See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 14, 15. For consideration of the MPA Bill's provisions, see Cull, above n 2, 93, and for the HPCA Bill, see Cull, above n 2, 98.
[181] This point was made by one submission on the report. See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 15.
[182] See Part VI.
[183] Cull, above n 2, 81.
[184] These reforms are advocated throughout the report, but relate primarily to the material considered as part of term of reference 3.
[185] The Acts in question primarily are the HDC Act, the MP Act and the AIA. [Note: as of 1 April 2002 the AIA will be replaced by the IPRC Act 2001.] The key organisations involved are the HDC, MCNZ, ACC MMU and MPDT. For Cull's discussion of the amendments proposed in the MPA Bill, see Cull, above n 2, 93-5. These recommendations are supported by this paper.
[186] Ibid 82.
[187] This suggestion was made by some submissions on the Cull Report. See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 8. However, the proposal for the establishment of an independent health monitoring unit is entirely the writer's.
[188] See above Part VII.
[189] This rule is one of the foundation stones upon which the New Zealand justice system is based. See D Mathieson, Cross on Evidence (6th ed, 1997) 420. The rule has been commented on also by Reason, Managing the Risks of Organizational Accidents, above n 7, 211.
[190] Note: these investigations by the IHMU should not involve consideration of medical mishaps that the professional has been involved with. This is because if classified correctly, medical mishaps reveal no fault on the part of the registered health professionals engaged in administering treatment. Obviously this raises the issue of the need to ensure that instances of medical misadventure are classified correctly. This issue has been considered above in Part V.
[191] See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 10.
[192] Note: the only exception to this being that the IHMU's analysts would be responsible for spotting repeat offending doctors and investigating their conduct where appropriate.
[193] Reason, Managing the Risks of Organizational Accidents, above n 7, 15.
[194] Jamieson, above n 16, 3. See above Part II for the other three patient wants.
[195] Reason, Human Error, above n 7, ch 6.
[196] Ibid 149-60.
[197] For obvious reasons, the IHMU would not be involved in error detection at the self- monitoring level.
[198] Reason, Human Error, above n 7, 161.
[199] Ibid.
[200] Ibid 164.
[201] Ibid 171.
[202] Reason, Managing the Risks of Organizational Accidents, above n 7, 212.
[203] Ibid 127-9. Reason identifies seven reasons why the balance of scientific opinion clearly favours the situational rather than the personal approach to error management.
[204] Cull, above n 2, 88.
[205] Note: this system will be made possible by the inclusion on the database of all cases of medical misadventure, be they error or mishap. See Part VII of this paper for a discussion of this proposal.
[206] Cull, above n 2, 82.
[207] Ibid 83.
[208] Ibid 82.
[209] New Zealand Bill of Rights Act 1990 (NZ) ss 23, 25.
[210] Cull, above n 2, 71-3, 77-85.
[211] Ibid 73.
[212] Ibid 85.
[213] Note: It may also be possible to have the database hold information about patient complaints to hold information relating to 'reportable events'. The combination of these two sources of information could be of great assistance to the IHMU in the detection and prevention of future adverse medical events. Unfortunately, a full investigation of this proposal falls outside the scope of this paper. However, for more information on reportable events, see the Ministry of Health, Reportable Events - Guidelines, above n 8; the Ministry of Health, Toward Clinical Excellence: Learning from Experience - A Report to the Director-General of Health, above n 8.
[214] It is interesting to note that the recommendation was commented on by 35 submissions on the Cull Report, of which 76% agreed and 24% disagreed with the proposal. See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 8.
[215] Having the database controlled by the IHMU should help to alleviate this concern. See discussion in Part VII.
[216] This was also advocated by some of the submissions on the Cull Report. See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 8. See also H Winkelmann, and N Beadle, 'Cull's report vital reading' (18 April 2001) New Zealand General Practitioner 17.
[217] See Cull, above n 2, 64, 77-8.
[218] See commentary in the Ministry of Health, The Cull Report (December 2001), above n 15, 3.
[219] Some of the submissions stated that all misadventure claims should be recorded, although it is not recorded the reasons why some of the submissions suggested this is not recorded by the Ministry of Health. See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 8.
[220] Ibid 15.
[221] The classification of cases of medical misadventure, is considered in Part V.
[222] One of the roles of the IHMU, however, would be to guard against the inappropriate use of such information contained on the database.
[223] Note: in some cases such descriptions of patients may lead to the disclosure of the patient's identification. While this should be avoided as much as possible, with the use of careful descriptions that do not disclose more than is required, it is conceded that on occasion the disclosure of a patient's identity may result from such a description. This is to be regretted but it seems unavoidable and is perhaps a necessary evil of creating a useful database.
[224] Reason, Managing the Risks of Organizational Accidents, above n 7, 118.
[225] For a more detailed discussion of the issues that are presented by near miss reporting, see ibid, 118, 120.
[226] This refers to the Ministry's guidelines on reportable events. See above n 213.
[227] See Part VII for a discussion of the gatekeeper role that the IHMU would perform in respect of all such applications.
[228] See Cull, above n 2, 73.
[229] See discussion in S Johnson, Health care and the Law (2nd ed, 2000) 194-5.
[230] While this system may result in the inadvertent disclosure of a few patients' identity, this is justified by the public benefit that will be achieved with the creation of a database that can help to prevent medical errors occurring in the future.
[231] Cull, above n 2, 84.
[232] Ibid 85.
[233] This could raise additional problems of breaching patient/professional confidence. It is submitted that the breaching of such confidences should be avoided wherever possible, but that this will be justified where the demands of public safety and health are at issue.
[234] See Part VI.
[235] For an interesting comparison of the way disclosure within the health service is treated in the United Kingdom, see G Vinten, Whistleblowing - Subversion or Corporate Citizenship? (1994). In addition, see N Craft, 'Whistleblowing in the Health Service: Accountability, Law and Professional Practice; Whistleblowing: Subversion of Corporate Citizenship?' (1995) British Medical Journal 311:1444. Unfortunately a detailed comparison of the way this topic is dealt with in the United Kingdom and New Zealand falls outside the scope of this paper.
[236] See the Ministry of Health, The Cull Report (December 2001), above n 15, 4.
[237] Cull, above n 2, 92.
[238] The Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 12.
[239] See the Ministry of Health, The Cull Report (December 2001), above n 15, 2; the Ministry of Health, Health Professionals' Competency Assurance Bill Discussion Paper, above n 15, 22.
[240] Cull, above n 2, 99.
[241] This suggestion was made expressly by some of the 14 submissions on the Cull Report that favoured the proposal for a single disciplinary tribunal. The Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 13.
[242] It is interesting to note that nurses can only be charged with 'professional misconduct' while doctors can be charged with 'disgraceful conduct', 'professional misconduct' and 'conduct unbecoming'. If a single disciplinary tribunal was established it may be appropriate to institute three levels of charge for all registered health professionals so that each profession can be more easily compared with one another.
[243] The submission of the MPDT and other submissions also raised this concern. See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 14.
[244] Ibid.
[245] Ibid.
[246] Ibid.
[247] See Part V.
[248] This comment was made by a number of submissions on the report. See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 14.
[249] Cull, above n 2, 100.
[250] See the Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 14.
[251] Ibid.
[252] Cull, above n 2, 100.
[253] A full consideration of judicial independence falls outside the scope of this paper. For a detailed account, see P A Joseph, Constitutional and Administrative Law in New Zealand (2nd ed, 2001) 260-8.
[254] Note: this problem would only be exacerbated if a judicial officer was to preside over the disciplinary tribunal, as this should result in a reduction of the number of additional tribunal members.
[255] Cull's recommendations in this section relating to the flexibility of the HDC in dealing with complaints, the DP, the establishment of one disciplinary tribunal, the damages jurisdiction, appeal rights, the CRT, referrals to professional bodies and hospital referrals will not be considered here by this paper. See the consideration of each of these issues earlier in the paper.
[256] Cull, above n 2, 104-12.
[257] Ibid 108-9.
[258] The Ministry of Health, The Cull Report (December 2001), above n 15, 4.
[259] Ibid.
[260] The submissions on the report were divided 57% in favour and 43% against the proposal. See The Ministry of Health, A Summary of Submissions on the Review of Processes Concerning Adverse Medical Events, above n 1, 17-8. The submissions not in favour of the 'one-stop-shop' provide alternative suggestions for the streamlining of complaints about adverse medical events. These suggestions include the establishment of Regional Commissioners, or a co-ordinating agency for complaints as part of the HDC, or even the HDC becoming an information centre for patients to go to so that they can be informed of the correct place to lodge their complaint.
[261] Ibid 17. Fifteen submissions, including that from the NZMA, said that the HDC office would need to be adequately funded to deal with the inevitable increase in complaints it would receive as the portal for all complaints.
[262] This concern was raised by some submissions on the Cull Report. Ibid 18.
[263] See Part VII.
[264] Cull, above n 2, 108.
[265] Ibid 15.
[266] Cunningham, above n 25, 467 refers to the fact that the current complaints system is not working for GPs.
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