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Patients rights in New Zealand: a tool for quality improvement?

Paper delivered to 3rd National Health Care Complaints Conference Melbourne
March 2001

Ron Paterson
Health and Disability Commissioner

Introduction

It is often assumed that complaints to some form of statutory Health Ombudsman ^[1] are an effective mechanism not only to resolve individual complaints, but also to improve the overall quality of health care. Indeed, the title of this conference - "Getting Better Together: Using Complaints to Improve to Quality of Our Health Services"- exemplifies the assumption. It is a laudable objective, and an understandable one for those who work in the Offices of Health Ombudsmen. After all, it would be rather soul destroying to think that one's efforts are directed solely to the resolution of an endless stream of individual complaints, which may assist those individuals, but have not broader impact. Commissioners find it comforting to believe, as Victorian Health Services Commissioner Beth Wilson has written, that health disputes offer a "window of opportunity" to improve health services, and that "this quality improvement function is a major raison d'¨ºtre of the Commissioners" ^[2]. Professor John Horvarth expressed a similar view at the Health Care Complaints Conference in 1997, noting that health complaint watchdogs had not merely settled individual complaints but, in so doing, had improved the standards of care across health services ^[3]. My paper will address the questions: "Where's the evidence?" and, specifically, "Have Patients' Rights in New Zealand been a tool for quality improvement?"

Definition of Quality

In this paper, I will use the following definition of quality, adopted by the Institute of Medicine in its 1999 report "To Err is Human" ^[4]:

The degree to which health services for individuals and populations increase the likelihood of desired health outcomes and are consistent with current professional knowledge.

Background to Patients' Rights in New Zealand

The 1990s saw major reforms of the public funding and provision of health services in New Zealand, and in legislative recognition of individual rights. The media spotlight on the events uncovered during the 1987-88 Cervical Cancer Inquiry, and Judge Silvia Cartwright's influential report ^[5], signalled a turning point in public attitudes to the medical profession. Demands for patient autonomy challenged the traditional approach of beneficence and paternalism, and led to the appointment of patient advocates at some hospitals, the establishment of regional ethics committees, and a focus on informed consent ^[6]. The Medical Practitioners Disciplinary Committee reported an upsurge of complaints against doctors ^[7], from increasingly assertive patients.

Parliament also responded to the mood of the times. The New Zealand Bill of Rights Act 1990 affirmed "the right not to be subjected to medical or scientific experimentation" without consent ^[8], and "the right to refuse to undergo any medical treatment" ^[9]. The Human Rights Act 1993 expanded the grounds of prohibited discrimination to include "disability" and "age" ^[10], both key indicators for doctors obliged to ration publicly funded health services. The Consumer Guarantees Act 1993 gave consumers of services (including health services) statutory guarantees of reasonable care and skill ^[11], and fitness for purpose ^[12]. The Health Information Privacy Code 1994 ^[13] expanded the boundaries of patient confidentiality to protect any health information about an identifiable individual, held by a health agency, from unauthorised disclosure save in exceptional circumstances ^[14], and created a statutory right of access to medical records ^[15].

Code of Consumers' Rights

The Code of Health and Disability Services Consumers' Rights ^[16] is a natural progression from these developments. Its genesis was Judge Cartwright's recommendation that a Health Commissioner be appointed and a statement of patients' rights promulgated ^[17]. The final impetus for a statutory Code came from the health reforms enacted in 1993 ^[18]. The Health and Disability Commissioner legislation was presented as an essential complement to the reforms, and was ultimately enacted in 1994. The purpose of the Act is "to promote and protect that rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights" ^[20]. The legislation provides for publicly funded advocacy services. The Commissioner also has a broad role as a public watchdog in relation to issues affecting the rights of health and disability consumers.

The Commissioner's specific complaints investigation role relates to alleged breaches of the statutory Code. Prior to 1996, the ethical and professional responsibilities of health care providers in New Zealand were scattered among a variety of sources, poorly defined, often unwritten, and legally unenforceable other than via the disciplinary process. In July 1996, the Code of Consumers' Rights came into force. The Code does not create significant new professional responsibilities, but rather "codifies" or "affirms" pre-existing patients' rights and corresponding providers' responsibilities.

The Code sets out ten rights that are available to all health and disability services consumers, including those involved in teaching and research. Each right imposes a corresponding legal duty on health care providers. Consumers in both the private and public sector are covered, and the duties apply to health professionals, unregistered health care providers, and institutional providers, such as hospitals and rest homes. In general terms, the codified rights cover basic principles (such as the right to respect), standards of care, information disclosure, consent, and complaint procedures. Under Clause 3 of the Code, a provider is not in breach of the Code if he or she has taken "reasonable actions in the circumstances" to give effect to a consumer's rights. This takes into account factors such as a consumer's clinical circumstances and a provider's resource constraints. Proof of actual harm to a consumer is not necessary for a breach finding.

Right 4 is the umbrella provision that underpins the right of every consumer of health care to receive good quality care ("services of an appropriate standard"). Right 4(1) affirms the right to have services provided with reasonable skill and care; right 4(2) is the right to services that comply with legal, professional, ethical and other relevant standards; and right 4(5) affirms the right to co-operation among providers to ensure quality and continuity of care.

Breaches of the Code usually result is recommendations to review and improve practice. More serious cases are referred to a registration body for a competence review or to an independent prosecutor (the Director of Proceedings) for disciplinary proceedings or a claim to the Complaints Review Tribunal (where damages may be awarded in limited circumstances). The Commissioner has no power to award damages, but may recommend a refund of fees.

Statutory Medical Misadventure Compensation in New Zealand

A crucial feature of the New Zealand legislative landscape related to adverse outcomes of health treatment is the accident compensation legislation. In other common law jurisdictions, injured patients may bring a lawsuit for damages for medical negligence. There is much debate about whether the so-called deterrent effect of tort liability (or at least health professionals' perception of legal risk exposure) has a positive impact on health care quality. Brennan has noted that "we lack empirical information on how tort litigation has affected quality improvement generally" ^[22], but points to studies that suggest institutional providers such as hospitals may recognise a deterrent signal, in contrast to individual physicians who may in any event be poorly placed to develop the necessary safety measures to protect themselves from tort claims ^[23].

Since 1974, medical malpractice litigation in New Zealand has been effectively been barred by accident compensation laws. Personal injury caused by medical error - the failure by a registered health professional to observe the standard of care and skill reasonably to be expected in the circumstances - results in cover and statutory entitlements. Civil negligence claims are effectively barred by a statutory bar on claims for damages arising directly or indirectly from personal injury covered by the Act. The Court of Appeal in Green v Matheson ^[24] firmly shut the door on claims for compensatory damages arising from the way in which a patient had been dealt with by the health system: "whether the failures alleged be insufficient or wrong treatment, failure to inform, misdiagnosis, misrepresentation ... or administrative shortcomings", they amount to "medical misadventure" which triggers a statutory bar. Claims for exemplary or punitive damages are available, but it is not clear that even gross negligence by a health provider will lead to such an award; the only successful claim to date involved sexual abuse of a patient by a psychiatrist ^[25]. The net result is that doctors and other health professionals are the fortunate beneficiaries of a system that looks to the state to compensate victims of medical negligence; they are not even required to contribute to the cost of state funding for the medical misadventure account ^[26]. In the absence of definitive studies, one can only speculate whether the lack of any tort deterrent effect has had an adverse impact on the quality of health care in New Zealand.

What can a Health and Disability Commissioner achieve?

What evidence is there that the Health and Disability Commissioner has contributed to an improvement in the quality of health and disability services in New Zealand over the nearly five years that the Code of Consumers' Rights has been in force? The inaugural Commissioner, Robyn Stent, saw the Code as "a quality improvement tool, a blueprint for customer service ^[that] encourages ^[providers] to incorporate its principles into training programmes and codes of practice" ^[27]. This approach was reflected in the organisational kaupapa or vision for the Office: "to facilitate improved consumer service and to enhance wellness in New Zealand."

This view was echoed by a leading consumer advocate, Judi Strid, at a recent National Health Committee Quality Workshop:

The Code of Rights developed by the Health and Disability Commissioner's office could not be bettered as a framework for quality. It is consumer-focused and covers the dimensions of quality as well as consumer rights - with the focus on people getting the right advice, the right care, provided in the right manner, by the right person and the right outcome.

I am less convinced of the ability of generic regulation to be an effective framework for quality, let alone to achieve better health outcomes. It seems to me that the goal of a Health Ombudsman such as my Office should be to ensure that the rights of health consumers are recognised, respected, and protected. If that goal is achieved - in particular the objective that consumers' rights are respected - it will mean that where health care is provided to health consumers, it is of appropriate standard, and sufficient information is disclosed to enable consumers to make informed treatment decisions. Better informed consumers are more likely to make health care decisions that are in their best interests, and if their care is of good quality and well co-ordinated, there may an overall improvement in health quality; ie (as defined earlier) in the degree to which health services for individuals and populations increase the likelihood of desired health outcomes and are consistent with current professional knowledge.

As noted earlier, right 4 is the umbrella provision that underpins the right of every consumer of health care to receive good quality care. The Code is not, and should not be, the primary mechanism for the establishment of standards. Right 4 is intended to provide a means by which standards set by other bodies can be enforced. Ultimately, the responsibility for establishing and maintaining quality standards should lie with the relevant profession. However the Commissioner may make recommendations about the need for standards to be set by the relevant professional body, if an investigation reveals that standards have not been developed and promulgated.

Turning specifically to the role of complaints investigation and resolution in quality improvement, a Commissioner is little more than the ambulance at the bottom of the cliff if all that is achieved it a retrospective analysis of how and why a consumer's rights were breached. Assuming that the individual provider found to have breached the Code responds positively to recommendations to improve the standard of his or her practice, a modest victory for quality at the micro level (ie, in relation to services provided by a single provider) may be claimed. But how does a Commissioner use the resolution of individual complaints to help build the fence ad the top of the cliff, and secure improvements in quality at the macro level (ie, in relation to services provided by health providers generally)? The answer lies in the use of reports on Commissioner investigations for educational purposes.

Use of Complaints for Educational Purposes

Parliament clearly envisaged an educational role for the Health and Disability Commissioner. The Commissioner is specifically required "to promote, by education and publicity, respect for and observance of the rights of health consumers" and "to make public statements and publish reports in relation to any matter affecting the rights of health consumers" ^[28]. In practice, this is achieved in the following ways: by media statements on matters of public concern, or on cases which the consumer takes to the media of his or her own accord; by publication of anonymised investigation reports at www.hdc.org.nz, the Commissioner's website; by sending anonymised copies of reports to the relevant College and/or professional body; and by sending anonymised copies of reports the Ministry of Health (as the key government agency for the development of health policy and the funding and auditing of health providers), the Minister of Health, and relevant statutory agencies (such as the Mental Health Commission in relation to reports on mental health services). Since the scope of investigations, and the "generalisability" of report recommendations, vary greatly, a "horses for courses" approach is taken in determining when, and how, to use a specific report for educational purposes.

Case Studies

The following Commissioner reports on public hospital investigations are illustrative of the way in which recommendation from specific cases may be influential in leading to improvements in health care quality.

Canterbury Health Report 1998

In 1996, senior clinical staff at Christchurch Hospital, a large metropolitan public hospital, made numerous approaches to management about concerns over restructuring and the adverse impact on quality. Frustrated by the lack of response, staff went public with their concerns about patient safety, particularly about a number of deaths in Emergency Department. Commissioner Robyn Stent initiated a major investigation into the operation of the hospital and found a number of systems failures that had compromised patient safety. She found a general lack of investment in quality control systems, and a lack of co-operation and communication between management and clinical staff. Junior staff were poorly supervised and were performing procedures with inadequate training and experience. The Report included a raft of recommendations for change to management and clinical practices at Christchurch Hospital, and a specific recommendation to the Ministry of Health of introduction for a system of credentialling of medical staff in New Zealand public hospitals.

In response to the Canterbury Health Report, a national medical credentialling project was commenced in 1999. In March 200, the Ministry of Health released the document "Towards Clinical Excellence", setting out a framework for the credentialling of senior medical officers. "Credentialling" is defined as:

A process to assign specific clinical responsibilities to health professionals on the basis of their training, qualifications, experience and current practice, within an organisational context. This context includes the facilities and support services available and the service the organisation is funded to provide. Credentialling is part of a wider organisational quality and risk management system designed primarily to protect the patient.

The document notes that credentialling is relevant to all health professionals and states that Ministry's expectation that other professional groups should develop credentialling models based on generic principles but tailored for the competencies of the various professions. Credentialling is stated to be a management responsibility: employers are responsible for credentialling staff on appointment and during employment. This initiative that can be directly traced to the Canterbury Health Report, has been welcomed throughout the health sector as an important step to improve the quality of care in public hospitals.

Taranaki Healthcare Report 2001

A recent report on an investigation into the care provided to a seriously injured young man by Taranaki Hospital Emergency Department has highlighted serious safety concerns about New Zealand Emergency Departments. The investigation was undertaken following the death of 19 year-old Tommy Whittaker, whose father complained to the Commissioner. Expert advice from an emergency medicine specialist indicated that staffing levels in Taranaki Hospital fell below international standards and that similar staffing problems existed in Emergency Departments throughout the country.

In 1997 Taranaki Hospital (a medium-sized provincial public hospital) had one medical staff member, often a first year house surgeon, rostered in charge of all departments except obstetrics between 10.30pm and 8.00am. Other medical staff were available on-call. Ideally such cover should be provided by a third year or, at a minimum, second year house surgeon. The hospital failed to provide its staff with adequate guidelines for neurological observations: observations were carried out hourly, rather than half hourly which is the national international and standard. A system for staff to contact more on-call registrars or consultants for advice was in place but no guidance was given as to what staff could do if the on-call staff member failed to respond. The house surgeon did not know to contact the consultant when the on-call registrar failed to respond.

The Taranaki Healthcare report recommended that the Ministry of Health review the staffing levels and competence of Emergency department staff. Following widespread media publicity, the Australasian College of Emergency Medicine has called for New Zealand Emergency Departments to be brought up to international standards. Emergency Department experience is important for junior doctors, but they need careful supervision and should not be left in sole charge. The reality of staffing shortages, particularly in rural areas, may mean that international standards are still some way away for some departments. However the report has prompted a re-examination of the standard of care in New Zealand Emergency Departments, and specialists working in this field are confident that it will lead to improved care.

Gisborne Hospital Report 2001

In June 2000, the New Zealand Nurses Organisation wrote to the Minister of Health and spoke to the media about concerns of nurses employed Gisborne Hospital, a small, provincial public hospital. The admitted re-use of syringes by a visiting anaesthetist and the potential risk of disease transmission to 134 surgical patients was widely published. In July 2000 the hospital announced that an error had been made by its laboratory in carrying out Prostrate Specific Antigen (PSA) testing. One hundred and seventeen patients were notified of the error and advised to see their general practitioner about the need for re-testing. Against this background, I initiated an inquiry into patient care and quality assurance systems at Gisborne Hospital. In my recent Gisborne Hospital Report, I found specific breaches of the Code in the operating theatre (due to the re-use of syringes) and in the laboratory (due to failures of quality control and human error in relation to PSA test results. I also found breaches of the duties of care and co-ordination of a hospital provider, due to the failure of Gisborne Hospital to have adequate quality assurance and incident reporting systems in place.

Gisborne Hospital's Incident and Complaint Management Policy was unsatisfactory in a number of respects. There was no differentiation between incidents where harm could have occurred ("near misses") and adverse events where harm did occur. There were no guidelines for the completion of incident reports, no mechanism to track filed reports, and inconsistency about which incidents were drawn to the attention of senior management. Where incidents were reported, in the period under review, lipservice was paid to the concept of root cause analysis, but staff personally involved in the incidents experienced criticism and blame. Incident reporters often received no feedback. Quality and continuity of patient care was potentially compromised by the failure to have an effective incident reporting system. The report included 34 recommendations related to incident reporting and complaints handling, consistent with the approach of the British National Health Service report An Organisation with a Memory ^[29], that analysis of adverse events in health care should focus on root causes, and not simply the proximal events or human errors in isolation of wider processes and systems. The report has been welcomed as important step towards ensuring continuous quality improvement in health care in New Zealand public hospitals, at a time when media focus on individual practitioner error is thought to be leading to the practice of defensive medicine.

Conclusion

One swallow does not make summer, and three influential Commissioner reports on patient safety in New Zealand public hospitals do not establish that the quality of care for patients has improved. Translating patients' rights from slogans into effective regulatory levers for improving the quality of health care remains a significant challenge. Empirical research is needed to evaluate to effectiveness of health complaints mechanisms. As noted by one US commentator, "the ultimate test of these protections is whether they help lead to an improved health care system, not whether they satisfy established constituencies in the short run"^[30]. The jury is still out on whether legislated patients' rights will prove to be an effective tool for quality improvement in New Zealand. Ron Paterson Health and Disability Commissioner

^[1] The focus of this paper will be the impact on statutory complaints mechanisms on the quality of health care. I have not here considered to broader question of the impact of such mechanisms on the quality of disability services, although the jurisdiction of the Health and Disability Commissioner in New Zealand extends to disability services providers.

^[2] Wilson, B, "Health Disputes: A 'Window of Opportunity' to Improve Health Services" in Freckleton, I, and Petersen, K, (eds) Controversies in Health Law (The Federation Press, NSW, 1999) 179.

^[3] Ibid.

^[4] Lohr, K, (ed) Medicare: A Strategy for Quality Assurance (National Academy Press, Washington DC, 1990).

^[5] The Report of the Cervical Cancer Inquiry (Government Printing Office, Auckland, 1988).

^[6] See, for example, Medical Council of New Zealand, A Statement for the Medical Profession on Information and Consent (1990).

^[8] Section 10.

^[9] Section 11.

^[10] Section 21(1)(h) and (i).

^[11] Section 28.

^[12] Section 29.

^[13] Issued by the Privacy Commissioner as a code of practice, under the Privacy Act 1993, s 46.

^[14] Rule 11.

^[15] Rule 6, which builds on the precedent, in the public sector, of the Official Information Act 1982, s 24.

^[16] The Code is set out as a Schedule to the Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996.

^[17] See footnote 4 above.

^[18] The Health and Disability Services Act 1993.

^[19] Address by the Minister of Health, Bill Birch, to Medico-Legal Conference, Auckland, 18 October 1993.

^[20] The Health and Disability Commissioner Act 1994, s 6.

^[21] Brennan, T, "The Role of Regulation in Quality Improvement" (1998) 76 The Milbank Quarterly 709-731.

^[22] Ibid, p 723.

^[23] Ibid, p 721.

^{[24] [1989]} 3 NZLR 564. The litigation was a sequel to the Cervical Cancer Inquiry 1987-88.

^[25] L v Robinson (High Court, Christchurch, 29/3/00, Chisholm J).

^[26] Collection of medical misadventure premiums from registered health professionals is provided for in the Accident Insurance Act 1998, ss 296-298, but has not occurred in practice.

^[27] Report of the Health and Disability Commissioner for the year ended 1998 (Health and Disability Commissioner, Auckland, 1998) 5.

^[28] The Health and Disability Commissioner Act 1994, s 14(1)(c), (d).

^[29] Department of Health, London, 2000.

^[30] Neil Weisfeld, Executive Director, New Jersey Medical Association. Personal communication to author, March 1999.