Health Practitioners Competence Assurance Bill

Part 8 makes amendments to the Health and Disability Commissioner Act 1994. That Act was brought in by the National Government and has been an extremely successful Act of Parliament. The Health and Disability Commissioner has been extremely effective, and I congratulate him on the leadership he has given.

Major changes were made to this part during the select committee process, and because we managed to deliver the one-stop shop that Helen Cull QC talked about, we will support this part, as it really will continue to improve things. Helen Cull QC produced a report in response to the Parry inquiry. It decided that there was no concerted approach to complaints mechanisms, with up to 14 agencies separately investigating the same adverse medical event. Can members imagine what it is like to be a doctor or patient in the front line? It is absolutely mind-boggling. People have no idea about the time it will take, the complications it will cause, and the difficulty for patients and their families. They have said that unless one is very articulate and competent, one does not manage to find one’s way through the system. So the report recommended a one-stop shop. Under this bill, pre and post-1994 complaints will go to the Health and Disability Commissioner. Not many complaints are pre-1994, but there are still some.

A lot of the complaints heard in the Parry inquiry were about how patients were treated by what were called complaints assessment committees, which were set up pre-1996. We also heard from a Mr Wilson, who talked about how the Accident Compensation Corporation had found medical error but the complaints assessment committee had thrown out the case. It was extremely confusing for people when one organisation or agency found significant error, and then the disciplinary tribunal found no error. That sort of confusion in people’s minds has been very difficult.

But if all complaints are to go through to the Health and Disability Commissioner, then obviously that agency will need more resourcing. In secret, we heard evidence about what it was like for a person to have somebody become fixated on him or her and make malicious complaint after malicious complaint. Every complaint that had gone through the process was shown to have no grounds, but every single one had to be investigated. The Health and Disability Commissioner needs to have the ability to deal with malicious complaints. The commissioner also needs time lines to speed up the process. Time and time again we heard how long it takes to get through that process, how long it takes for a complaint to be heard, and for there to be a resolution. That is something we have hoped to improve.

I have an amendment to Part 8, which I hope members will consider. The amendment takes out the Human Rights Review Tribunal. If the director of proceedings determines that there is no case to go forward, then there should not be the double jeopardy of someone being able to go to the Human Rights Review Tribunal. I have an amendment to remove that clause, which I hope will be supported tonight.

With the quality assurance programmes I talked about before, and the complaints assessment procedures that have improved markedly at our hospitals around the country, one hopes that a majority of complaints can now be sorted out at the coalface, and these days I think that often happens. When people make a complaint, they want, firstly, acknowledgement of what they have suffered, and, secondly, they want to make sure that it does not happen to anybody else. That can often be sorted out at the coalface of our hospitals if complaints are taken seriously, if the families and persons concerned are worked through the issues, and if people simply say “sorry” when there are mistakes and problems, and then move on to ensure that systems change.

I am grateful for the opportunity to speak on this most important Part 8. Like my colleague Dr Lynda Scott, I would like to congratulate the commissioner on the very strong and excellent submission he made to the Health Committee. I believe it was very much that shaping and influence that led National to support this part of the bill.

It is also really important to go through just a bit of the history that led up to the Cull report, because it is a sad indictment on the New Zealand health scene over the last 20 years. It was not just the Cartwright inquiry report in respect of National Women’s Hospital; history then repeated itself with the sad saga at Gisborne, and once again and more recently, we had the Parry incident up in Northland. Helen Cull QC collated the various concerns into a report that had a huge impact, and it really shaped the basis of this Part 8.

Helen Cull concluded that the current complaints system was inadequate. Its principal problem was that there was no concerted approach to complaint mechanisms, with up to 14 agencies separately investigating the same adverse medical event. It is absolutely incredible that the New Zealand health system had got itself into such an unfortunate situation. There was the Accident Compensation Corporation on the one hand, the district health boards on the other, and the various medical bodies were not talking to each other and not collating the same statistics. Certainly, when the Health Committee went through the Parry report a year or so ago, it was quite evident that that was a major problem, so it is extremely good to see the Cull report being embodied in legislation over these next few weeks.

The report recommended three immediate solutions. The first is a requirement that various agencies be required to report practitioners whose practices are below acceptable standards to the Health and Disability Commissioner and to professional bodies. Undoubtedly, that was long overdue and appropriate.

The next solution is mandatory reporting by professional peers if there is reason to believe that a colleague is practising below an acceptable standard. With a true Pavlovian dog reflex, the Minister of Health immediately said: “Let’s dob in a doctor!”. That was the cry of the Minister of Health. That was what she wanted to do immediately. Fortunately, common sense has prevailed, because she finally recognised—with a lot of aid—that no workplace would work constructively if that sort of atmosphere were to prevail.

The third solution is to give professional authorities the power to suspend practitioners temporarily if they pose a risk to public safety, or to impose conditions on their practices prior to the laying of charges before a disciplinary tribunal.

I have just been looking through the submissions of the various major bodies, including the New Zealand nurses’ organisation, and it is interesting that all of them support the changes that have been made. But Dr Lynda Scott’s point that clause 231 should be changed has also been unanimously supported by both the New Zealand Medical Association—the association of fulltime specialist practitioners—and the Medical Council of New Zealand, as well as the nurses’ organisation. They have all pointed out that clause 231 needs changing, and I hope the Minister will take note of it.

I would like to lend the support of ACT New Zealand to Dr Lynda Scott’s amendment to this bill. There is the fear that this bill will add multiple jeopardy, and I believe that is a very realistic fear. The legislation may well open the door to wider involvement of the Human Rights Review Tribunal in medical affairs. Successful complainants to the Health and Disability Commissioner will be able to bring proceedings before the Human Rights Review Tribunal where the commissioner does not refer the case to the Director of Proceedings.

At present, it is possible to do this only if the director declines or fails to take proceedings, and that right remains. Some quite prominent lawyers have warned that some lawyers are likely, however, to test the limits of the Human Rights Review Tribunal—as is often the case when these bodies alter—and there may be an initial flurry of cases to test the potential of this jurisdiction. In fact, many people are predicting that that is exactly what will happen. David Collins QC identified this as a potentially fruitful area of growth, which could provide meaningful compensation to those whose rights had been breached. The Human Rights Review Tribunal could also award damages of up to $20,000, which is quite a lot of money.

Pre-tribunal hearing settlements have been made for compensatory damages for a range of cases. One such case was a baby, born at Hutt Hospital, who suffered severe brain damage. That can occur, as many people and health professionals in the Chamber will know, for a range of reasons. This baby later died at home, and in 2001 the tribunal awarded $20,000 for compensatory damages and this decision was upheld in the High Court. So that is just a glimpse of what we might be letting ourselves in for, if this clause is not removed from the bill.

The New Zealand Medical Association has also been quite vocal in that respect. The association said it believes that this complicates the process, and adds a new, unnecessary avenue for complainants to exercise their rights. Complainants who appeal directly to the Human Rights Review Tribunal are likely to benefit from at least some successful damages awards, and their appeals may lead to simple apologies being ascribed a monetary value, which was not previously the case and certainly is not something we want to encourage in this country.

The New Zealand Medical Association has had discussions with the Ministry of Health about that matter, and the association has asked for this provision to be removed. Certainly ACT supports the association in that, and we support Dr Lynda Scott’s amendment to this bill in that regard.

In speaking more generally about part 8, I think that there are many clauses in this part that we are very pleased with, as some previous speakers have said. At the Health Committee we had long discussions about this part, as we had with all other parts. The new provisions for the complaints process certainly, as I have spoken of before, are something that I think everybody on the committee felt was a step in the right direction. Having a one-stop shop where all complaints go directly to the Health and Disability Commissioner to be vetted and then either dismissed because they are not appropriate or are vexatious, or referred on to the new procedures committees, certainly is a step in the right direction, we believe. It should see complaints processed in a much shorter time, which is an advantage for everybody—including for the complainant, who will have his or her complaint thrown out because it is not appropriate, or dealt with in a speedy manner.

Also, for the health practitioner, of course, it is very taxing and very stressful to have a complaint laid against one, particularly if that complaint is not warranted. There are doctors whom I know reasonably well, who have had complaints laid against them, and years later they still have not been processed or dealt with. It is very difficult for the health practitioners to continue practising to a good standard when that is the case. They worry a lot about the proceedings that are before them, but no time frame is given. So time frames were mentioned, and it is important that cases are met with expediency.

I move, That the question be now put.

It is always nice, and such a rare occurrence, to be able to support something from this Government and, in particular, this Minister. But I have to say that it is only because of the sterling work of the Opposition members of the Health Committee. I include in that the Green member. We worked together very, very fully to get some sense into the legislation. We found a part that we can actually feel quite happy about, but with an amendment. I would like to support my colleague Dr Lynda Scott. In her Supplementary Order Paper she is asking that clause 231 be deleted. Again, I am following on from my colleague in the ACT party Heather Roy, who yet again has made another sensible and considered contribution to this debate.

We must not have a double jeopardy situation in these complaints. As a lawyer, I have acted for medical practitioners who have found themselves on the wrong end of complaints. I have also acted for people who had complaints against medical practitioners, or health practitioners, as they are now called under this bill. It is for those medical or health practitioners the most worrying thing. They are people who do not stand around saying: “Oh, well, I’ve got a complaint today; so what, who cares!”. They do not take that sort of “Black Adder” approach. What they do do is worry. They worry, and they worry, and they worry. We are talking about people who are under the most immense stress in their day-to-day lives, and who are, in many ways, never off call. They are always, no matter where they are—in a plane, for example—health professionals, and they are going to be called on if something goes wrong.

I note my colleague Dr Lynda Scott saying that, yes, she knows, because she has been there and still is. I must say that we all often consult Dr Lynda Scott and Dr Paul Hutchison on all sorts of little issues, but, fortunately, not Dr Hutchison in his previous occupation for some time! Doctors, nurses, health professionals—I want to call them health professionals; I do not like this “health practitioners” nonsense. These people are professionals, and for goodness’ sake, why can they not be called that? Maybe we should move an amendment quickly to get that changed. It is absolutely appalling that those professional people, who dedicate their lives to providing service for others, are being told that they are no longer professionals. That is a shame. What we have to do is get rid of this double jeopardy; the situation where if people cannot get them one way, they will get them another.

We have a tremendous amount of faith in the Health and Disability Commissioner, Mr Ron Paterson. We know he is someone who has the support of this House in this area. I think I can speak for all the parties here—and we are all nodding—that we have a lot of faith in his ability and in the ability of his team. We do not need somebody second-guessing him in this. We do not need to put the people through this again if he has dismissed a complaint. Why should they have to go back again? Why have another go? In this particular clause, anything that slows down the process of complaint is a bad thing. In fact, complaints, just like justice, must be speedy enough. In other words, it has to be able to be dealt with within someone’s lifetime. It certainly has to be dealt with within a period of time so that people can then get on with their lives. It should not be something that drags on for 6 years. It should not be something whereby a health professional—I will use that term again: a health professional—is being bullied and pursued by somebody who decides that he or she has a problem with that particular health professional.

Certainly, at the select committee we heard time and time again of people in the health professions who were in fact the subject of constant complaint by the same person.

I move, That the question be now put.

I appreciate the opportunity to take a call on Part 8, because this is such an important part of the legislation. Previous speakers have referred to the Cull report, the work of Helen Cull, which has informed these amendments. I congratulate Helen Cull QC on the work she did in this area. It took a lot of courage, commitment, and perseverance, because what we are dealing with here are professionals, and, of course, no professional group of people likes to get found out in any way. That is the fact of the matter. It is important that we can address what was clearly an inadequate process that had such tragic results, but, more than that, led to even further tragedy for the women involved, and for the families, because there was no provision for an adequate process. It is important that we have had good information, and that we were able to address the issue in a comprehensive way and with some confidence.

We will never forget, so, hopefully, we will never again see that situation. It is amazing to me that we had a situation where there was nothing that gave any health professional any responsibility to report on colleagues who were practising below acceptable standards. There was no power to suspend prior to charges being laid, so one wonders about the agony some of the women were going through.

This issue of no mandatory reporting is an indictment on our health system. It is an appalling situation, and, as I said earlier, it resulted in utter tragedy for a number of families in this country. Helen Cull’s report recommended three immediate solutions. I have already touched on one, which is the mandatory reporting by professional peers if there is reason to believe that the peer was practising below an acceptable standard. The other two recommended solutions are a requirement that various agencies be required to report practitioners whose practice is below acceptable standards to the Health and Disability Commissioner, and that a professional authority have the power to suspend practitioners temporarily or to impose conditions on their practice prior to the laying of charges before a disciplinary tribunal.

It is proper that we make a serious contribution to this part of the legislation. These are serious matters when the sector has failed the public of New Zealand, and this Parliament has too. That these things could happen indicates a massive failure of public policy. It is something that none of us in this Parliament can be proud of, and we should all be pleased that we are in a position to correct and address the situation in a comprehensive way. This is a time when a person is probably proud to be a member of Parliament and able to think that we are doing something worthwhile. I know we all think that we always do that, but there are times when we do something that is of far more importance than other things, and this is one of them.

It absolutely underpins the purpose of this bill, which is the protection of the health and safety of New Zealanders. It is a tribute to the women who persevered and who were not put off under the most awful circumstances in bringing their complaints forward and progressing them under what I would imagine would have been severe hardship, and also a tribute to Helen Cull, because it takes a professional of significant competence and integrity to be able to find his or her way through circumstances such as these and come up with this sort of report.

I move, That the question be now put.