Health Law
Assignment One

Due Date: 4 September 2013

Legitimate health care practice in New Zealand (NZ) is without exception multifaceted, complex and challenging for both registered and non-registered health providers. This is in part because, despite common misconceptions, the interpretation and application of both legislation and judge made law is not absolutely objective or even static within our legal system, and because health law incorporates civil and criminal law (among other specialities). The Code of Health and Disability Services Consumers' Rights 1996 (the Code) is legislation central to our legal health practice in terms of complaint resolution and quality control; in addition the Crimes Act 1961 has become more relevant since 2012. This essay sets out to critically analyse a case (10HDC01344), (see appendix one) in which the Code was deemed to have been breached, and in which the Crimes Act 1961 is relevant. This includes a critical analysis of possible wider legal implications, with a specific application to military paramedic practice.
The Health and Disability Commissioner Act 1994 (the Act) was born as a result of an enquiry into unethical research practices within the National Woman’s Hospital. Arguably even without this incident such legislation was necessary for progress in the ‘no fault’ environment of the accident compensation scheme of the time (Godbold & McCallin, 2005; Dew & Roorda, 2001). The Act legislated for a change from trust based regulation, to a trend of health consumerism. Its purpose still is to “promote and protect the rights of health consumers and disability services consumers” (Health and Disability Commissioner Act, 1994, section 6, p 4). Furthermore it facilitated for a process of simple efficient resolution of complaints relating to the breech of rights (Keenan, 2010; Paterson 2002). Later the Code was established within a schedule to the regulation, empowered by the Act (Keenan, 2010). The Code contains ten consumer rights, and gives some detail as to the specifics and application of those rights. Among these, and central to 10HDC01344 sits Right 4 which relates to appropriate standards of care. The Code places obligations on providers to take reasonable actions in their circumstances to uphold the rights of the consumer (Keenan, 2010; The Code of Health and Disability Services Consumers' Rights 1996).
Some authors are highly critical of the Health and Disability Commissioner (HDC) process, others less so. Skegg, (2011) doesn’t believe that the HDC categorically succeeds at any of its aims, however discusses that when compared internationally it is still seen as innovative and successful. Paterson (2001) thoughts were initially more positive, not only did he argue its role is one of quality control, he also believed it could be viewed as being successful. Although later suggested the HDC concentrate on upholding consumer rights, and disagreed with suggestion it was a toothless tiger (Paterson, 2001b). Bismark and Studdert, (2010) support the idea that the HDC ought to assist in quality improvements; however they also critical of its success. Temelkovski and Callaghan (2010) conducted an in-depth analysis of one hundred HDC case investigations between 2004 and 2008. They found there was a lack of diverse cases types published, and those published lacked the required information to be used as an education tool. Furthermore they concluded that the published cases displayed inconsistences and unnecessary complexity. Interestingly inconsistencies discovered in critique of 10HDC01344 add weight findings of Temelkovski and Callaghan (2010).
According to Reason (2000) both the system and the individual play their parts in any one failure, with the system being the most modifiable. This does not mean the only entity liable. From this point of view it is arguable as to whether the Commissioner considers best practice risk management opinion in order to apportion blame with best effect (Skegg, 2011). However, in 10HDC01344 West Coast District Health Board (WCDHB) did need to take responsibility for quality control issues. But not at the expense of the individuals being held accountable. In this case Dr B and Dr C were not proactive in their attempt sources information relating to patient transfer on the night in question, this was despite a consumer having a suspected life-threatening condition (Health and Disability Commissioner, 2013). Thus, based on the balance of probability neither did all that was reasonable in their circumstance to provide services with skill and care (4(1)), consistent with the consumers’ needs (4(3)), or in a manner that optimises quality of life (4(4)). The commissioner has overlooked some rights. Patterson (2002) sees this type of issue as a reality of the rights based legislative framework. In He argues that in general the language of rights does not necessarily translate into the consumers’ realisation in every way (2002). An implication of this issue for practice is that the current Commissioner places a strong emphasis on the system in regards to apportioning blame; a move too far in this direction may set the way for a culture void of personal responsibility. Practically this decision also reinforces the need for systems to have accurate policy in order to in-part shift liability. Clinically, as a military paramedic it reiterates the need to err on the side of caution and consult further based on a differential diagnosis of serious consequence.
In 10HDC01344 the Commissioner requested expert advice from Dr Aitkin. Dr Aitkin argued that Dr B’s action of not seeking neurosurgical advice ought to be viewed as an independent issue from the transfer concern, because on its own it is a major omission in care. However this advice was not influential and no breech was found. The fact that the Commissioner sees these issues as one in the same contrary to independent clinical advice is concerning. Furthermore, the Commissioners’ report infers that the reason Dr Aitkins’ advice regarding Dr C was not followed was because she was not qualified to comment (Health and Disability Commissioner, 2013). This is despite commissioner’s earlier confirmation that independent expert opinion is critical in the objective application of the ‘Bolam’ standard (Godbold & McCallin, 2005). To add confusion the Commissioner sought advice from an unnamed emergency department (ED) advisor whose credentials and evidence are not included in the report (Health and Disability Commissioner, 2013). Herein sits a significant issue of transparency and integrity which could implicate a lack of trust in the process (Temelkovski & Callaghan, 2010). This action is also in conflict with what Godbold and McCallin (2005) discuss. According to these authors, since 2004 the commissioner has implemented policy that ensures names and credentials of independent advisors are in case reports; thus adding weight to decisions. In addition this concern over the lack of adviser detail also makes it difficult to uses this case as an educational tool; a window of opportunity wasted (Temelkovski & Callaghan, 2010; Paterson, 2001). Importantly however, on review of the three most resent published cases it appears this issue is not a trend (Health and Disability Commissioner, 2013)
If the commissioner reveals a breach of the Code they have the option of referring the issue to a professional body, making recommendation to the provider, supplying recommendations to the ministry of health, or referring the issue to the director of proceedings (Keenan, 2010). This case ended in making recommendations to the provider, and requesting adjustments to the individuals’ clinical practice (Health and Disability Commissioner, 2013). If the incident took place today, it is unlikely that the outcome would be different based on the lack of significant changes in the HDC processes. However whether in the past or now, such a result would not stop the medical council from undertaking a competence review of the individual’s concerned (Hill, 2013). In any case where there is a breech finding the commissioner also has the discretion to refer it to the director of proceeding. This director has further powers to decide whether or not further legal action is required. Action may be taken through the Human Rights Review Tribunal (HRRT), under the Human Rights Act, 1993 and the Privacy Act 1993 or via the Health Practioners Disciplinary Tribunal (HPDT) under the Health Practioners Competency Assurance Act, 2003 (Hills, 2013; Rogers, 2004). The later only relates to issues of malpractice, negligence, or omission from registered health professional’s (Baker 2008; Keenan, 2010). It is important to understand that like the HDC actions these are also civil; this is because they relate to action being taken by an individual because another individual has wronged them (Keenan, 2010). In these process outcomes are based on the balance of probability. Civil action is very different to criminal action which is normally brought by the police for offences against the state with an aim to punish perpetrator (Merry, 2007).
According to Diesfeld and Godbold (2009) the police are inconsistent in taking criminal action against health providers. These authors are critical of the difference in criminal action across different professions, or even the same profession for similar behaviours. At the time of the incidents relating to this 10HDC01344 it is questionable as to whether this clinical action or inaction could have led to criminal convictions. This is In part because the burden of proving the required detail beyond reasonable doubt would be very difficult (Merry, 2007). At the time neglect would be the only likely consideration for criminal prosecution of those involved and this is still a relevant in 2013. According to the part 8 of the Crimes Act 1961 health professionals in NZ can be held criminally liable for a breach of their duties relating to the preservation of life. Most relevant in this case is section 157 ‘the duty to avoid omissions dangerous to life’. Importantly, however, according to Merry (2007) this duty is subject to section 150A of the same act, which restricts criminal liability to situations where there has been a significant departure from the expected standard of care. Therefore if the independent advice from either expert in 10HDC01344 was replicated before a criminal court that court would almost certainly conclude with no conviction. Additionally, if this incident were to happen today there would be further criminal avenues to explore. In 2012 there were changes to section 195A of the Crimes Act, 1961. In part these changes were designed in order to protect children from sexual and physical abuse. However the detail extended much further to include a new offence against a new group of persons defined as ‘vulnerable adults’. Vulnerable adults are considered to be like children as they, for many reasons, are not capable of removing themselves from a risk of serious harm. In a health context this legislation aims to prosecute those who know of others committing unlawful actions against, or committing gross neglect in terms of not preforming their duties towards a vulnerable adult or a child. That is if it can be proven that a staff member fails to take reasonable steps to protect these vulnerable people from that risk (Barnett-Davidson, 2012). This offence is one of omission, not commission. In relation to 10HDC01344 it may have implicated many more health providers via spreading legal responsibility; additionally it could have empowered them to speak up. However again, prosecution would be unlikely as there is conflict of opinion over the acceptableness of practice.
Outside of this case the implications of this legislation are also widespread as they affect a diverse scope of providers ranging from nurses to military paramedics; potentially simultaneously, and in one setting. General implication ought to be the requirement for promulgation of this change and for effective policy development in line with the legislative intent. In the context of a military paramedic, the requirements needed for a conviction are unlikely to be based on simple errors. Firstly one has to be in frequent contact with the vulnerable person; in battlefield practice this does not often happen. Secondly the paramedic would have to know that the vulnerable person is in serious risk of harm. This would not be easy to establish on infrequent contact. Finally they would have to fail to take reasonable steps to prevent the hazard (Barnett-Davidson, 2012). Ultimately the law does not ask more than expected standard of behaviour however it enforces ethical standards with legislation. The associated punishment for anyone found liable or breaking this law is a maximum of 10 years in prison; a strong deterrent.
In conclusion health law in NZ is complex. We have a unique system for dealing with complaints, upholding the rights of consumers, and assisting with quality control. Whether or not the system is entirely effective at anyone of these is very debatable. The use of the HPDT and the HRRT are further civil methods of disciplining health professionals, and seeking damages for wrongs committed. Criminal avenues are also available in order to punish health professionals for neglect, or in terms of new legislation for acts of omission in the protection of vulnerable people. Health law in NZ is highly relevant to military paramedics. Ultimately health law in NZ is in many ways very unique, but it is also very inconsistent. There is a real need for further research, resourcing, and review in order for confidences to be maintained.

References:

Bismark, M. and Studdert, D. M. (2010). Realising the research power of complaints data. The New Zealand Medical Journal, 123(1314).
BMJ : British Medical Journal

Baker, T. (2008) The Human Rights Review Tribunal and the Rights of Health and Disability Consumers in New Zealand. Journal of Law and Medicine Vol. 16, No. 1, 85-102.

Dew, D. and Roorda, M. (2001). Institutional innovation and the handling of
Health complaints in New Zealand: an assessment. Retrieved from http://www.sciencedirect.com.ezproxy.aut.ac.nz/science/article/pii/S0168851001001324

Diesfeld, K. and Godbold (2009). Disciplinary development in New Zealand.
International Journal of Therapy and Rehabilitation, 16(10), No. 9 557-563.

Godbold, R. and McCallin, A. (2005) Setting the standard? New Zealand’s approach to ensuring health and disability services of an appropriate standard. Journal of Law and Medicine, Vol. 13, 125-134.

Health and Disability Commissioner. (2013). West coast district health board,
Physician Dr B. Retrieved from https://autonline.aut.ac.nz/webapps/portal/frameset.jsp?tab_tab_group_id=_2_1&url=%2Fwebapps%2Fblackboard%2Fexecute%2Flauncher%3Ftype%3DCourse%26id%3D72475%26url%3D

Keenan, R. (2010). Health care and the law (4th ed.). Wellington, New
Zealand: Brookers Limited.

Merry, A. (2007) When are errors a crime? Lessons from New Zealand. In
A.Erin and S. Ost (Eds) The Criminal Justice System and Health Care. Oxford: Oxford University Press, 67-97.

Paterson, R. (2001, March). Rights in New Zealand: a tool for quality improvement? Paper presented at the 3rd National Health Care Complaints Conference Melbourne. Retrieved fromhttp://www.hdc.org.nz/education/presentations/patients-rights-in-new-zealand-a-tool-for-quality-improvement

Paterson, R. (2001b) ‘Health and Disability Commissioner – A toothless tiger?’
Paper delivered to 9th Annual Medico-Legal Conference

Paterson, R. (2002). The patients' complaints system in New Zealand. Health
Affairs, 21(3), 70-79. doi: 10.1377/hlthaff.21.3.70

Reason, J. (2000). Human error: Models and management. Retrieved from http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1117770/ Rogers, S. Culling bad apples, blowing whistles and the Health Practitioners
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Skegg, P.D.G. (2011) A fortunate experiment? New Zealand’s experience with a legislated Code of Patients’ Rights. Medical Law Review, Vol. 19, 235-266.

Temelkovski, S. and Callaghan, K. (2010) Opportunities to learn from medical incidents: A review of published reports from the Health and Disability Commissioner. New Zealand Medical Journal, Vol. 123, No. 1314, 1-12.

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Table of legislation

1. Health and Disability Commissioner (Code of Health and Disability Services Consumers' Rights) Regulations 1996
2. Health and Disability Commissioner Act 1994
3. Health Practioner Competency Assurance Act 2002
4. Human Rights Act 1993
5. Privacy Act 1993

Appendix One: Case summary 10HDC01344

On 29 May 2012 the Health and Disability Commissioner (the Commissioner) commenced an investigation into a possible breech of the Code in relation to the treatment of a consumer who was admitted to Grey Base Hospital with the provisional diagnosis of a cerebral abscess. On the night of first assessment Doctor (Dr) B and Dr C did not consult with the available specialist neurosurgical services at the nearby large public hospital. This was because they wrongly believed there was no possible chance of flying the consumer to higher medical aid at all during the hours of darkness. On arrival at the larger public hospital the following day the condition of the consumer had deteriorated. He had a ruptured cerebral abscess. The Commissioner declared that West Coast District Health Board (WCDHB) was in breach of Right 4(1) of the Code. In that by failing to ensure that their on-call doctor (Dr B) understood their night transfer process, they did not provide the consumer with services of an acceptable standard. Furthermore WCDHB was also found to have breached Right 4(2) for their lack of professional standards regarding patient documentation. Dr B and Dr C were not found in breach of any Right (Health and Disability Commissioner, 2013).