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The Patients’ Complaints System In New Zealand
PROLOGUE: Since the heyday of managed care in the United States, horror stories abound of health plans denying patients seemingly necessary treatments or medications, with virtual impunity, because of cost considerations. These stories have fueled a grassroots consumer protection movement that has crystallized into the debate among policymakers seeking to fashion a federal patients’ bill of rights. Previous legislative incarnations of this effort have grappled with such issues as ensuring patients’ access to independent external review of denials of care and permitting individuals legal redress for bad outcomes in federal and state courts. This paper chronicles a similar groundswell of popular momentum in favor of patient protection in New Zealand, which culminated in the 1996 enactment of the Code of Patients’ Rights. This law established a mechanism whereby complaints of malpractice or mistreatment could be lodged with an independent ombudsman, who has the authority to investigate, recommend changes in provider practices, and serve as the "gatekeeper" for professional discipline. Significantly, although this structure was designed to provide consumers with a means to resolve individual complaints, it was also intended to serve as a catalyst for quality improvement throughout New Zealand’s health care system. However, while this conflict resolution–centered system yielded a dramatic spike in complaints about providers, consumer advocates have complained of an equally significant drop in the number of medical practitioners held over for disciplinary action. Ron Paterson concludes that although the independent ombudsman mechanism has secured a level of accountability for suboptimal outcomes in individual cases, the system’s ability to spur sustained quality improvement remains murky. As New Zealand’s Health and Disability Commissioner since 2000, Paterson is uniquely positioned to evaluate this patients’ complaints system. Prior to this, he served as deputy director-general for safety and regulation in the Ministry of Health. From 1986 to 1999 he served on the faculty of law at the University of Auckland. He was a Fulbright Visiting Professor of biomedical ethics at Case Western Reserve University in Cleveland, and more recently, a Harkness Fellow in health care policy at Georgetown University. He holds a bachelor of laws from the University of Auckland and a master of laws from Oxford.
Since 1996 New Zealand has had a Code of Patients’ Rights enforceable by complaints to an independent ombudsman. Patients are entitled to receive health care of an appropriate standard, to give informed consent, and to complain to a health commissioner about perceived malpractice. The commissioner investigates and reports on complaints, recommends practice changes by providers, is a gatekeeper to discipline by professional boards, and acts as a public advocate for patient safety. In this paper the current commissioner describes New Zealand’s experience with the patients’ complaints system and discusses the implications for the quality of health care.
New Zealand’s patients’ complaints system cannot be understood without an appreciation of the context of health care delivery. Two features are noteworthy from a North American perspective. First, the health care system is one of universal coverage. In 1998–99 the federal government funded 77.5 percent of health care from general taxation revenue. Secondary care is provided free of charge from publicly owned hospitals; primary care and prescription drugs are partially subsidized.1 Second, a public "accident compensation" insurance scheme covers the cost of rehabilitative medical care and earnings-related compensation for victims of "medical misadventure" or work, traffic, and other personal injuries.2 "Medical misadventure" includes two types of iatrogenic injury: injury caused by a health professional’s negligence ("medical error"), and injury caused by a rare (less than 1 percent of cases) and severe (more than fourteen days’ hospitalization or significant disability lasting more than twenty-eight days in total) complications from treatment by a health professional ("medical mishap").3 Limited lump-sum compensation may be available, and tort claims for damages for negligence are barred if "medical misadventure" insurance coverage exists.4 The net result is that health professionals are the beneficiaries of a system that looks to the state to compensate victims of medical negligence. Doctors pay modest professional indemnity levies and are not required to contribute to the cost of state funding for the medical misadventure account.5 Background to patients’ rights. An unanticipated consequence of extending the accident compensation scheme in 1974 to cover victims of medical misadventure and barring negligence claims was that judge-made law did not develop patients’ rights in New Zealand at a time (during the 1970s and 1980s) when Anglo-American medicolegal jurisprudence was developing. The only legal avenue for a patient’s complaint was before a health professional board, which could initiate disciplinary proceedings. Medical discipline was criticized for its lack of independence, its secrecy, and its slowness. Public scandal erupted in 1987 when it was revealed that numerous women diagnosed with cervical carcinoma in situ had, without their knowledge or consent, been part of a research trial at New Zealand’s leading women’s hospital. The research entailed withholding conventional treatment to study the natural course of the disease, when the prevailing view was that carcinoma in situ was a precancerous condition that warranted treatment. Forty of the women eventually developed invasive cancer.6 The ensuing 1988 Report of the Cervical Cancer Inquiry recommended the development of a Code of Patients’ Rights (emphasizing a patient’s right to give informed consent), the appointment of a health ombudsman to investigate patients’ complaints, publicly funded patient advocates, and the creation of research ethics committees.7 Most important, the Cervical Cancer Inquiry signaled a fundamental shift in public attitudes toward the medical profession. Demands for patient autonomy challenged physicians’ traditional approach of beneficence and paternalism.
An independent ombudsman—the health and disability commissioner—was created in 1994 under legislation designed "to promote and protect the rights of health consumers."8 The commissioner is the single entry point for all complaints alleging the breach of a patient’s rights. Consumers’ rights are set out in regulations and include rights to be treated with respect, to be free from discrimination or exploitation, to dignity and independence, to effective communication, to be fully informed, to services of an appropriate standard, to give informed consent, and to complain.9 Consumers are broadly defined to cover all users of health and disability services, whether publicly or privately funded, in institutional or community settings. The rights apply at the point of service delivery and give rise to corresponding duties by providers: doctors, nurses, hospitals, nursing homes, and providers of traditional and alternative care. Funders of health care (including the government and private insurance companies) are not covered, and the code gives no right of access to care (although it will enforce a duty to provide emergency care, where that is ethically required). The New Zealand law thus differs from much of the U.S. patients’ rights legislation, which tends to focus on the rights of consumers with health insurance.10 The rights are not comprehensive. Significantly, the right to patient confidentiality is affirmed in separate privacy legislation, enforced by a privacy ombudsman. Nor are the rights absolute. It is a defense for providers to prove that they have taken "reasonable actions in the circumstances." Relevant circumstances are defined to include "the consumer’s clinical circumstances and the provider’s resource constraints."11 This is an explicit acknowledgement—in a country where rationing of publicly funded health care is openly acknowledged and waiting lists for elective surgery are commonplace—that costs constrain the quality of care. The right to high-quality care. At the heart of the code is the right to services of an appropriate standard. The component parts of this right affirm a patient-centered concept of quality, with five dimensions: (1) services provided with reasonable care and skill; (2) services provided that comply with legal, professional, ethical, and other relevant standards; (3) services provided in a manner consistent with the consumer’s needs; (4) services provided in a manner that minimizes potential harm and optimizes quality of life; and (5) cooperation among providers to ensure quality and continuity of services. The right to services of an appropriate standard thus encompasses the traditional duty of care (reasonable care and skill) with modern concepts of patient safety (minimization of harm) and care coordination. The right to complain. The main enforcement mechanism for aggrieved consumers is to complain to an independent advocate or to the health and disability commissioner. Any person (the consumer, a family member, or even another provider) may complain about a provider’s care, orally or in writing.12 The role of an advocate is to assist a consumer to resolve concerns directly with the provider. The commissioner has two options on receipt of a complaint: referral of the matter to an advocate for resolution, or formal investigation.13 Advocacy is usually reserved for cases that appear to raise no issues of exploitation, incompetence, or public safety and in 2000–01 was successful in partly or fully resolving 76 percent of complaints referred to advocacy (often by face-to-face meetings with providers). The following is an example. Case Study: Advocacy Services. Mrs. A received voluntary mental health care as a result of severe depression, which followed a series of bereavements. She required a six-week inpatient stay at a mental health facility, where she encountered a problem with a nurse who, although not responsible for her care, went out of his way to upset her on several occasions. More complex or serious cases, particularly involving multiple providers or systemic issues, are investigated. Parties and witnesses are interviewed, patient records are reviewed, and, where the appropriate standard of care is in issue, expert independent clinical advice is obtained. Although formal mediation is a resolution option, most investigations end in a written report from the commissioner to the parties and, where the provider is found to have breached the code, censure and formal recommendations, as in the following case study. Case Study: Medical Center Investigation. Through a series of repeat prescriptions from 1995 until her death from a pulmonary embolism in 1998, Mrs. B, a woman in her early thirties, had her prescription for the third-generation oral contraceptive pill Femodene renewed nine times. Numerous doctors at the medical center she attended signed the prescriptions. Resolution for individual complainants usually involves answers to questions about the care received, a written apology for any breaches of the code, and the knowledge that the provider is required to undertake specific quality improvement steps or (in the most serious cases) to undergo a formal competence review by his or her peers or a disciplinary process, or both. The commissioner does not facilitate financial settlements, which providers are in any event disinclined to offer, since the medical misadventure insurance scheme effectively prevents any liability for payment of damages. In summary, the focus of the complaints system is resolution of complaints at the lowest appropriate level, acknowledgement of a patient’s concerns, and, where necessary, review and rehabilitation of a substandard practitioner or system.
The New Zealand complaints system is directed not only at resolving individual complaints but also at improving the quality of care delivered throughout the health care system. Complaints offer a "window of opportunity" to improve health services, and a quality-improvement function is "a major raison d’être of Commissioners."14 The inaugural commissioner, Robyn Stent, saw the Code of Patients’ Rights as "a quality improvement tool, a blueprint for customer service," and consumer advocates have described it 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."15 An ombudsman investigating complaints is little more than the proverbial "ambulance at the bottom of the cliff" if all that is achieved is retrospective analysis of how and why a patient’s rights were breached. Assuming that a provider responds positively to recommendations to improve substandard practice, a modest victory for quality at the individual level may be claimed. How does an ombudsman use the resolution of individual complaints to help build the fence at the top of the cliff and secure improvements in quality at a system level? The answer lies in the use of investigative reports for educational purposes and for underpinning systemic advocacy on behalf of health care consumers. Educational role of the commissioner. The New Zealand 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."16 In practice, this is achieved in the following ways: by media statements on matters of public concern; by publication of investigation reports (made anonymous) on the commissioner’s Web site; and by sending copies of reports (also made anonymous) to colleges and professional bodies, the minister of health, and the Ministry of Health (as the key government agency for the development of health policy and the funding and auditing of health providers).17 Since the scope of investigations and the generalizability 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. Here is one example. Case Study: Hospital Investigation. In June 2000 the New Zealand Nurses Organisation wrote to the minister of health and contacted the media about the concerns of nurses employed at Gisborne Hospital, a small provincial public hospital. The admitted reuse of syringes by a visiting anesthetist 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 prostate-specific antigen (PSA) testing. One hundred seventeen patients were notified of the error and advised to see their general practitioner about the need for retesting. Against this background, the commissioner initiated an inquiry into patient care and quality-assurance systems at Gisborne Hospital. Advocacy in the system. Findings and trend analysis from resolution of individual complaints enable an ombudsman to advocate in the health care system on behalf of consumers. For this to occur, the independence and accountability of ombudsman programs need to be fostered through statutory authority, dedicated funding, and a requirement for reporting to the legislature and the public.18 As an independent statutory agency separate from the political and policy decision-making process, an ombudsman is well placed to advance consumers’ interests and to have a major influence in shaping the public policy debate. This may be achieved both by public reporting and media statements—for example, to highlight the vulnerability of consumers in nursing homes—and by bringing concerns to the attention of ministers of health, policymakers, regulators, funders, and professional bodies. The work of the Center for Health Care Rights in Sacramento, California, and of the Vermont Health Care Ombudsman illustrates the potential to use casework to drive policy advocacy. Staff at the Center for Health Care Rights have challenged the view that the primary function of ombudsman programs should be to assist individual consumers, arguing that this is a bottomless task, with the goal instead being to use examples of individual consumers’ problems to drive systemic changes for all consumers.19
What evidence is there that the patients’ complaints system in New Zealand since 1996 has had any impact on the quality of care? No outcomes-based data are available to show any causative link between quality indicators and the new complaints mechanisms. However, the following general observations can be made, based on empirical data. Increase in complaints. There has been a dramatic increase in the number of complaints since the Commissioner’s Office was founded. From 1980 to 1990 annual complaints about doctors increased 88 percent (from 116 to 218).20 From 1996 to 2001 complaints to the commissioner about doctors increased 43 percent (from 518 to 743).21 This is hardly surprising, given the limited avenues for external complaint before 1996. Similar increases have been recorded in relation to nurses and other health professional groups. In the case of institutional providers such as hospitals and nursing homes, no avenue for external complaint and investigation existed before 1996. The dramatic increase in complaints and media focus on adverse medical events have been described by a New Zealand judge as the "public’s hue and cry."22 This is having a negative impact on health professionals, who report a sense of being "under seige" and claim that the risk of complaint to an independent ombudsman is leading to the practice of defensive medicine.23 Decline in discipline. The increase in the number of complaints against health professionals has not been reflected in a similar increase in the number of disciplinary charges before professional boards and disciplinary bodies. Since the commissioner is the gatekeeper to professional discipline, and the focus is on resolution of complaints, few matters are referred for prosecution. In 2000–01, of 111 cases where the commissioner found that a doctor had breached the code, only twelve were referred for professional discipline. There has been a dramatic decline in the number of medical practitioners facing disciplinary charges since 1996.24 This has been publicly criticized by a leading consumer advocate who lobbied for the current complaints system.25 Surveys of consumers and providers suggest that awareness of patients’ rights has increased since the code became law in 1996.26 Every hospital in New Zealand and most medical centers and nursing homes exhibit posters setting out the ten rights and advertising the right to make a complaint by calling a local patient advocate or the Commissioner’s Office on a toll-free telephone number. Greater focus on patient safety. New Zealand has followed the lead of the United States in growing recognition of the prevalence of adverse events in health care. The New Zealand Quality of Health Care Study reported an overall rate of 12.9 percent of adverse events associated with admissions to New Zealand public hospitals. A second important finding is that approximately 35 percent of adverse events were classified as highly preventable.27 Both findings are consistent with international evidence. These findings are prompting a wide range of patient-safety initiatives. A key concern is the need to develop a culture of learning in which providers, especially hospital staff, are encouraged to report all incidents (including adverse events). The complaints and medical misadventure insurance schemes are both under review, to ensure that external investigative processes—whether to determine "medical error" for the purpose of insurance coverage or a breach of the code as part of the resolution of a patient’s complaint—do not create a blame environment and hinder quality improvement by driving mistakes underground.
Commentators have noted that "no-fault" compensation for medical injuries is consistent with a systems approach to reducing errors and improving patient safety.28 An effective complaints system is an important complement to the medical misadventure insurance scheme in New Zealand, particularly given the ban on negligence claims.29 In seeking to promote and protect patients’ rights by advocates, investigation of complaints, educational reports, and advocacy in the system, the commissioner is able to ensure a measure of accountability for substandard practice in individual cases and to contribute to potential improvements across the health care system. Translating patients’ rights from slogans into effective regulatory levers for improving the quality of health care remains a major challenge. Empirical research is needed to evaluate the effectiveness of the New Zealand complaint mechanisms. As noted by one U.S. 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 and complaints to an ombudsman will prove to be an effective tool for quality improvement in New Zealand, but there are some promising signs.
An earlier version of this paper was presented at the Commonwealth Fund 2001 International Symposium on Health Care Policy: Health Care System Reforms and Strategies to Improve Access and Quality of Health Care for At-Risk Populations, 9–11 October 2001, in Washington, D.C.
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Code Of Patients' Rights
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