Publications
The Specialist
Issue 70 - March 2007
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- DHB’s disastrous industrial relations strategy
- Sound Bites and Stories
- How not to negotiate: The RMO MECA
- National Executive member Al Macdonald stands down
- New National Executive
- Strike
- Reflections on professional disciplinary proceedings
- Increased funding for electives has conditions
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DHB’s disastrous industrial relations strategy
It does not require rocket science to conclude that the industrial relations strategy adopted by the DHBs in 2006 and which is showing every sign of continuing this year is disastrous. The effect has been to turn every national collective agreement negotiation to date into a dust-up and protracted acrimonious scraps in various forms with the inevitable outcome being a debilitating and increasing distrust and suspicion by the DHB workforce (not just senior doctors) to DHB leaders and an undermining of their confidence in the direction of the publicly provided health system. Just about the only ones who do not recognise this are those that have devised and are applying it (the extent to which the government is complicit and comprehends the risks, including to itself, is unclear).
Putting personal egos to one side (but not to diminish its significance), three factors are driving the strategy—inflexible adherence to the government’s ‘future funding track’; control and the resurgent cult of managerialism in DHBs; and a simplistic understanding of labour market dynamics as they apply to DHBs.
‘Future Funding Track’
First, the government has established a short-sighted and unrealistic approach to funding known as the ‘future funding track’ (FFT) which DHBs have adopted quite literally and misleadingly in their industrial relations strategy and chosen to hide behind it. The approach itself is fundamentally flawed in concept—DHBs are to be funded the estimated rate of inflation in each of the next three years minus, in each year, 0.5%. The aspiration behind this approach is that the annual 0.5% relative funding cut will induce DHBs to improve efficiencies.
In fact, the reality is quite different. Rigid fiscal pressures put pressure on DHB board members and senior managers, who are much less likely to have a longer term view on service development and planning, to make short-term decisions without sufficient regard to longer term consequences. It creates perverse incentives that lead to poor decision-making. Examples include the fiascos associated with laboratories which have also been in some instances a back-door method of introducing private management over core public hospital services.
The previous National government adopted an even harsher approach in the 1990s known as ‘fiscal neutrality’ in which the total cost of each collective agreement negotiation was to be no more than the current operational cost of that agreement as if it was not re-negotiated (ie, no allowance at all for inflation); in reality, however, ‘fiscal neutrality’ was honoured in its breach.
But the architects of the DHBs’ industrial relations strategy have taken the FFT quite literally in applying it to the collective agreement negotiations. As the Health Minister himself has noted the FFT is the guaranteed minimum funding for DHBs which is always likely to be enhanced by further increases to permanent funding. A case in point is the Minister’s announcement of an additional permanent $200 million increase gradually introduced over three years and thereafter permanent for electives. Further, there are also two more Budgets under the current FFT in which further enhancements are possible. This possibility was also signaled in the Prime Minister’s ‘state of the nation’ address at the opening of Parliament in February.
Crudely translating the FFT to collective agreement negotiations not only ignores the fact that this is minimum guaranteed funding only but also the reality of trying to recruit and retain a health professional workforce in a small geographically isolated workforce where the international market, including across the Tasman, is highly competitive. An industrial relations strategy which includes as a key tenet that salary increases should be less than the cost of living is not smart in this environment without even commenting on the fairness of it and the sizable increases granted to chief executives (13% over two years).
Managerialism and control
Second, one of the consequences of tight fiscal pressures is a fostering of the cult of managerialism which can most simply be described as management knows best and a control agenda. The corollary of this is disenfranchising health professionals. This was partly evident in the DHBs original proposal for a ‘Memorandum of Understanding’ in the RMO MECA negotiations last year that led to the five day strike in June.
The proposed Memorandum would, if accepted, have given DHBs inordinate control of RMO terms and conditions of employment. This dispute was obscured by the fact that many senior doctors themselves have serious concerns about current RMO rostering arrangements but the proposed Memorandum was an over-the-top response to these legitimate concerns. In fact, the eventually agreed RMO MECA included a Memorandum that bore only limited resemblance to the original proposal and failed to deliver on the expectations encouraged by DHB hype at the time.
The ASMS’s own experience in our ongoing negotiations also highlights the control agenda. The DHBs have sought in various ways to increase managerial control over senior doctors in our MECA negotiations, some of which have subsequently been withdrawn but others remain live. These include areas such as assessing the necessary time for non-clinical duties, sabbatical decision-making, consultation rights, and the role of the ASMS-DHB Joint Consultation Committees.
Even the most vulnerable in the DHBs workforce (staff represented by the Service and Food Workers Union, eg, caterers, orderlies, and cleaners) have been affected by this hard-line attitude. Taking advantage of the relative vulnerability of these employees, the DHBs have refused to negotiate a national collective agreement with them despite national agreements being consistent with and favoured by government policy.
Labour market dynamics in DHBs
Third, there is an obsession, bordering on paranoia, by the DHBs’ strategists about flow-on, particularly over salary increases. That is, if the DHBs agree to an X% increase for one group, it will most likely extend to other groups. This is simplistic superficial logic which originated in days long gone when industrial settlements were shaped by formal relativity criteria derived in law. By the early 1990s flow-on had disappeared from the wider economy. In the health sector the ASMS, RDA, Nurses Organisation and Public Service Association (PSA), for example, negotiated many settlements without any relationship with each other.
Post-2000 the restored opportunity for national negotiations did not lead to relativity or flow-on pressures. Since 2000 the RDA, for example, has negotiated two national MECAs (the second was last year) but neither influenced the claims or outcomes of other negotiations. The first MECA negotiated by the ASMS was not influenced by other settlements; nor did it influence them. The first MECA negotiation by the Nurses Organisation was not influenced by the RDA and ASMS negotiations. The one arguable exception was the extension of what was known as the ‘pay jolt’ in 2005 for nurses to most other staff represented by the PSA. However, the ‘pay jolt’ was an exception driven by the previous neglect of those affected in the vulnerable era of the 1990s. Further, it did not extend to all staff represented by the PSA (clerical staff were unfairly excluded).
The reality is that the various negotiations are driven by different pressures than supposed flow-on. These include specifically recruitment and retention, strategic location in the DHB workforce, particular employment imperatives and demography. The DHBs’ strategists are unduly and detrimentally influenced by a naive misunderstanding about what actually happens. Ironically if anything generates the risk of flow-on it is the DHBs’ strategy itself based on a dogmatic and rigid application of the FFT discussed above. Beating the FFT becomes itself a flow-on aspiration.
The experience to date
The failure of the DHBs’ industrial relations strategy is already evident in more than one way. Every negotiation has its own dramas and conflicts. RMOs and laboratory workers have undertaken lengthy national strikes; radiation therapists and radiographers have undertaken selective strike action; the vulnerable employees represented by the Service and Food Workers Union have undertaken a token 90 minute strike over the DHBs refusal to negotiate as a sounding bell of further action to follow; and the ASMS Annual Conference voted to hold national stopwork meetings should our impasse continue (negotiations are currently in mediation). Meanwhile the nurses negotiations have commenced with all the signs suggesting that negotiation will also go to custard. We should not forget the RMOs whose MECA, negotiated last year after much conflict, expires at the end of June.
What has been the evidence of the ‘success’ of this strategy? To date, there have only been two settlements. The acrimony of the radiation therapists’ negotiations may well lead to a loss of these valued professionals remaining in
Strategy from hell!
Just as there can be neighbours from ‘hell’, deliberately or unwittingly DHBs have embarked upon an industrial relations strategy from the same location. Ironically and sadly it is in fact in contrast with the constructive relationships with the workforce that a number of chief executives (certainly not all) and many operational managers encourage and value; they are being unfairly tarred by this brush and their good work is at risk of being undermined.
But whether the DHBs’ strategy is driven by prevalent hard-line elements in DHBs or by naiveté (or inexperience in industrial relations), it is a counter-productive strategy that can only serve to undermine morale and effectiveness of the health workforce (by far the key determinant of quality and efficient resource utilisation), make New Zealand’s position in workforce development including recruitment and retention more difficult, leave corrosive legacies that will remain for a long time, and undermine the public’s confidence in DHBs. If this is not a strategy from hell, it begs the question of what is.
Ian Powell
Executive Director
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Sound Bites and Stories
The medical world is full of those who know the answer to any and every problem. If only they were given the resources, they could solve all the ills of any patient they see. If only they were given the authority, the power, the money, they could solve the woes of any health system or institution they endure in their employment.
Sounds like us.
The medical world is full of colleagues who moan about the patient who will not follow the advice and wisdom of their years of specialisation. Is full of colleagues who rail against bureaucracy and managers who will not follow their opinion on every facet of the organisation of health care.
Sounds like us.
The medical world is full of heroes who champion their patient’s million dollar demands in the face of overbearing rules and regulations. Is full of pushers of potions for the offer of salve for a few months more.
Sounds like us.
The medical profession is full of specialists who sacrifice their life, and the lives of those who care for them, on the altar of altruism. Is full of likely leaders who strive for betterment of the profession around the edges of their “real” jobs.
Sounds like us.
The medical profession is full of individuals passionate about making a difference. Is full of eager evangelists espousing the latest and greatest cure, care, evidence based answer, or burning desire for an RCT.
Sounds like us.
The medical leadership is full of enthusiasts with a critique of any attempt to reform what we do. Full of leaders who project their own persona, for good or not so good, in their pronouncements and pontifications.
Sounds like us.
So why have we not solved all the ills of the patient, the family, the institution, the health system, the community, the country, the planet, the universe? With such passion, specialisation, knowledge, enthusiasm, perseverance, sheer hard work, sacrifice, and moral magnificence, we must have made a difference. Measurable with a p-value, or not.
Sounds like us.
Perhaps we should look at what truly makes a difference. What makes an idea, a solution, a cure, a care, really stick. When dispassionate researchers look to the world of ideas, and what makes an idea stick, they find six components that are common to all. The stickiest ideas – regardless of intrinsic merit – have a lot in common in the ways they are presented. They are simple, unexpected, concrete, credible, emotional, and story-telling. (Of course, the fact these components spell out ‘succes’ is merely incidental).
Should we, and our leaders, learn from the world outside medicine? Should we launch forth from the high moral ground, from the certitude of science, allied with the conviction of cooperation, and frame our advice, our ideas, our solutions inside the formula for succes?
If the intrinsic merit is without question, there is nothing to lose, and everything to gain, from sounding a bite, or even a feast, that is simple, that may be unexpected, that is concrete, that is credible, that tugs at emotions, and that tells a story which resonates with those who will listen.
Sounds like us.
Jeff Brown
National President
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How not to negotiate: The RMO MECA
Of the entire not inconsiderable industrial strife last year arguably the most bitter was debate over the controversial ‘Memorandum of Understanding’ (MOU) proposed by the DHBs during last year’s acrimonious RMO MECA negotiations with the Resident Doctors’ Association (RDA), which included a five day national strike in June. The MOU soon became the critical issue in this dispute, the yardstick by which one assessed whether the DHBs or RDA did best out of the outcome.
The DHBs touted their proposed MOU, including to senior medical staff, as the means of addressing SMO concerns over RMO rosters and of ‘reclaiming the rosters’. Eventually settlement was reached which included an MOU that bore little resemblance with the MOU first proposed.
A closer analysis of the final agreed MOU confirms that rather than decreasing the level of RMO/RDA influence over rosters, it has in fact arguably increased it (at the very least it is not lessened). In particular, rather than enhancing DHB influence in the decision-making process of the MOU Executive, the RDA has an absolute right of veto. Arguably by creating a new decision-making process along with the wide scope of what can be referred to the MOU Executive by either party, the RDA’s influence is now even stronger and more extensive than it previously was.
This has to be the reason for the DHBs lack of urgency in getting the MOU underway especially given that it technically deceases when the current RMO MECA expires at the end of June this year. This contrasts with the hype and urgency the DHBs gave to their MOU proposal during the negotiations and in the media battle. The MOU Executive did not have its first meeting until February and most of the issues on the agenda were raised by the RDA.
During the industrial dispute last year one of the main reasons given by the DHBs for the MOU was that it would allow the ‘Hospital Night’ project to be considered. Now, presumably as it dawns on the DHBs that the MOU does not deliver what they hoped, it was the RDA (not the DHBs) pushing to have it on the agenda. All of the DHB hype during last year’s negotiations about what the MOU would achieve has disappeared as DHBs face up to the reality. One moral of the story is never get excited over your own rhetoric.
The DHBs negotiating team in selling last year’s settlement to their masters also argued that the change to the MECA clause covering changes to run descriptions was significant. Prior to the settlement the agreement of affected RMOs was required. What constituted agreement was not spelt out except that the RDA’s own policy was that the majority vote must be at least 50% plus 1. But instead of pushing for this to be included in the MECA the DHBs somehow ended up with a higher two-thirds threshold.
Such is the irony that a wag might observe that in the forthcoming RMO MECA negotiations commencing in the first half of this year the RDA will be seeking to retain the MOU (because of the influence it provides) and the DHBs will be seeking to remove it (because it gives the RDA too much influence). Perhaps it might even, God forbid, lead to another strike with the parties taking opposite positions defending and opposing the MOU? It is a funny world! Perhaps the MOU really was a Baldrick of Blackadder fame cunning plan. It certainly looks like it.
But more seriously this was a destructive dispute which has done long-term damage to relationships between DHBs and
Ian Powell
Executive Director
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National Executive member Al Macdonald stands down
The bow tie has fluttered to other fields.
Long serving National Executive member Al Macdonald,
Al injects acerbic wisdom into any debate. He has provided stabilising wit and worldly views, never failing to astound with his astute observations of our behaviour and that of others with whom we have discourse. His contributions to the National Executive will be keenly missed, but we have no doubt that he will continue to hold us to our principles through personal and professional persuasion at local and national levels. Long may his succinct and sartorial commentary linger.
Jeff Brown
National President
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Strike
This article has been kindly provided by the Medical Protection Society.
The health industry and hospitals have been characterised during 2006 with industrial action involving Resident Medical Officers, Laboratory Technicians and Medical Radiation Technologists. Each of these episodes has resulted in a reported reduction of access to health services and hospital care and an impact on the quality of that care for those who did access it. There maybe a repeat of this in 2007.
The Medical Protection Society was contacted numerous times by doctors concerned about patient care and their consequent individual liability, or as clinical leaders or as members of the organisation taking the industrial action.
What are our obligations as doctors in this environment?
Broadly, this may be looked at in two ways.
1. If you are a member of the organisation involved in the industrial action, there are
certain obligations for the disputing parties under the legislation (Schedule 1B of the
Employment Relations Act 2000). Both parties must have contingency plans to cater
for circumstances where there is a risk to life, which generally involves the ability
for doctors with specific skills not available otherwise to continue to provide
essential services, or to be able to call on extra personnel in a crisis, for example, a
civil emergency or a major trauma involving mass casualties.
There is no legal requirement for individuals to strike or take industrial action. There
will undoubtedly be peer and organisational pressure both for and against such a
stand, but in the end it will be a matter of conscience for each individual.
2. As doctors not involved in the action, there are pressures to attempt to ameliorate
the adverse effects of the dispute. Most of our members’ concerns came into this
category with worries about how to deliver reasonable care to patients and their
liability in the event of an adverse outcome as a result of their inability to provide a
reasonable standard of care because of the industrial action.
The Medical Council of New Zealand in its “Statement on safe practice in an environment of resource limitation” has some helpful advice.
25. Doctors cannot be held responsible in any forum for not providing what is not in
their power to provide.
26. Doctors who are placed in a position where they are unable to provide a preferred
treatment are advised to inform the patient what the preferred treatment involves,
what the next best option is and what this next best option involves. This discussion
should be documented.
27. Where possible, doctors should outline the rationale for treatment being limited or
denied. Where the reasons have dimensions that go beyond the technical
expertise of the doctor to resolve, the doctor should instead refer the patient to the
funding or responsible agency for an explanation.
28. Before making public statements about less than ideal services, doctors should first
advocate for the provision of preferred services to their employer and/or the
agency funding the service as appropriate.
In addition, the HDC Code of Health and Disability Services Consumers' Rights Regulation 1996, states:
3. Provider Compliance
A provider is not in breach of this Code if the provider has taken reasonable actions
in the circumstances to give effect to the rights, and comply with the duties, in this
Code.
The onus is on the provider to prove it took reasonable actions.
For the purposes of this clause, "the circumstances" means all the relevant
circumstances, including the consumer's clinical circumstances and the provider's
resource constraints.
Clearly, in an industrial dispute, as we saw last year, SMOs were not in a position to control the environment that they were being asked to work in. But steps could be taken to ensure that their position was as safe as possible.
However, it was possible to foresee some circumstances in which there would be a risk to life or, now, permanent injury, and it is incumbent on doctors to inform the disputing parties of these circumstances so that the parties can develop contingency plans to deal with them. Such advice should be in writing. In these days of electronic communication, any emails should be sent with a “receipt” or “read” response request, and a copy kept securely. Documentation is essential to defend individuals in the event of attempted criticism if there is an adverse event.
MPS members’ indemnity assistance remains in force during events such as these, and we are available to answer concerns and offer advice via our FreePhone
0800 CALLMPS (225 5677 (Press 1))
Mike
Medico-legal Consultant
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Reflections on professional disciplinary proceedings
(The following is an address given to the ASMS Annual Conference last November by Dr David Collins QC. Dr Collins is the new Solicitor-General. Previously he was the Chair of both the Accident Compensation Commission and the Medical Practitioners Disciplinary Tribunal. He is also an experienced medico-legal lawyer.)
Introduction
On Thursday last week the Court of Appeal of
Today I want to focus on this case when reflecting on medical disciplinary proceedings. I wish to use the case in question as the focus of my paper for two reasons:
1. The case provides an excellent illustration of the tension between the public
interest in providing a robust disciplinary regime for health professionals, and the
need to ensure that cases are judged solely on their merits and with a careful
regard being paid to the interests of the practitioner concerned.
2. The case in question provides a useful point of comparison between the
Zealand
disciplined in the
Professor Roy Meadow was an “eminent paediatrician” whose extensive career involved him in clinical medical practice, research, teaching and as an expert witness, particularly in the fields of sudden infant death (SID) and child abuse.
In 1999 Sir Roy gave evidence for the Crown against a Sally Clark, a lawyer, who was charged with the murder of her two children. As part of his evidence, Sir Roy provided a supplementary report which contained a statistical statement which said, inter alia:
“The likelihood of SID, rises with social circumstances. The most recent estimation of the incidence in
During cross-examination Sir Roy reiterated his statistical analysis by saying:
“This is why you take what happened to all the children into account, and that is why you end up saying the chance of two children dying naturally in these circumstances is very, very long odds indeed, one in 73 million.”
In answer to the next question asked of Sir Roy, he said:
"…It’s the chance of backing that long-odd outsider at the Grand National, you know; Let’s say its an 80 to 1 chance, you back the winner last year, then the next year there’s another horse at 80 to 1 and it is still 80 to 1 and you back it again and it wins. Now here we’re in a situation that, you know, to get to these odds of 73 million you’ve got to back that 1 in 80 chance four years running, so yes, you might be very, very lucky because each time it’s just been in a 1 in 80 chance and you know, you’ve happened to have won it, that the chance of it happening four years running we all know is extraordinarily unlikely. So it’s the same with these deaths. You have to say two unlikely events have happened and together it’s very, very, very unlikely.”
After hearing all the evidence, the jury convicted Sally Clark of the murder of her children. She was sentenced to life imprisonment but pursued a number of appeals. One of the grounds advanced in her first appeal related to the misleading nature of Sir Roy’s statistical presentation. On her first appeal Ms Clark’s conviction was upheld. In that judgment the Court of Appeal noted:
“Professor Meadow did not misuse the figures in his evidence, though he did not help explain their limited significance.”[1]
A second appeal was brought to the Court of Appeal following a referral to that Court from the Criminal Cases Review Commission. That referral was brought because of a failure to disclose pathology evidence at the original trial. That appeal was allowed. At this hearing the statistical statements of Sir Roy were considered in more depth and found to have been misleading and to have potentially had a major effect on the thinking of the jury. The Court of Appeal allowed Sally Clark’s appeal and did not order a retrial. At the time her second appeal was allowed in 2003, Ms Clark had spent three years in prison for the murder of her two children.
Following the quashing of her convictions, Sally Clark’s father complained to the General Medical Council (GMC) about Sir Roy’s evidence and conduct at the trial. His case was heard by the Fitness to Practise Panel (FPP), a body which in many respects resembled the New Zealand Medical Practitioners Medical Disciplinary Tribunal, which has now been superceded by the Health Practitioners Disciplinary Tribunal.
In July 2005 the FPP found that Sir Roy’s conduct constituted “serious professional misconduct”. Serious professional misconduct was the most serious category of charge that could be considered by the FPP and is in most respects akin to the old charge of disgraceful conduct that existed under the Medical Practitioners Act 1995. The FPP determined that Sir Roy’s name should be removed from the Register of Medical Practitioners. In delivering the Panel’s decision, Ms Clark-Glass noted that Sir Roy had not meant to mislead the Court in the
Sir Roy appealed to the High Court Queen’s Bench Division. On appeal, Collins J set aside the decision of the FPP. There were two basic grounds for His Honour’s decision, namely:
1. The making of an honest mistake of statistics did not justify a finding of serious
professional misconduct; and
2. Because an expert enjoys immunity from suit for evidence given in Court, the
GMC could not bring a disciplinary charge based on what Sir Roy had said in
Ms Clark’s trial.
Before examining Collins J’s reasons, there is one matter that should be stressed. In my view, the penalty imposed on Sir Roy by the FPP was very harsh. Doctors who make unintentional errors, even errors which have major implications are not normally punished by the way of ultimate sanctions. The decision to remove Sir Roy’s name from the Register of Medical Practitioners was, in the circumstances of this case, particularly harsh in light of the significant contributions he had made in paediatric medicine. A punishment less serious than striking off would have served to emphasise to the medical profession and public that scrupulous care must be taken by those called upon to provide expert testimony. It would also have served to remind practitioners of the need to ensure they do not stray beyond their areas of expertise. Sir Roy was an eminent paediatrician. He had a very limited understanding of statistics and should not have ventured beyond his area of expertise.
Threshold for “serious professional misconduct”
In his decision, Collins J accepted Sir Roy could be criticised for not making it clear in his evidence that he was not an expert in statistics. However, Collins J did not believe that Sir Roy’s conduct was as egregious as found by the FPP. Collins J was in no doubt the evidence did not justify the Panel’s finding of serious professional misconduct. He noted Sir Roy had made:
“One mistake, which was to misunderstand and misinterpret the statistics. It was a mistake, as the Panel accepted, that was easily…made. It may have been proper to have criticised him for not disclosing his lack of expertise, but that does not satisfy a finding of serious professional misconduct.”
His Honour proceeded to conclude:
“As the FPP did, that [Sir Roy’s] conduct was quite fundamentally incompatible with what is expected by the public from a registered medical practitioner ‘approaches the irrational’.”
By way of obiter dictum, Collins J suggested that at most, Sir Roy should have been punished by way of a “condition that he should not engage in medico-legal work” but that “in truth, the [adverse] finding itself was sufficient”.
Collins J’s conclusion that no adverse findings should have been made against Sir Roy generated a lot of debate in the medico-legal community. In my view, the fact that Sir Roy committed a “one-off” error and acted in good faith are legitimate factors to weigh up when determining the appropriate penalties. They are, however, not factors that should properly determine culpability in a professional disciplinary arena.
Most professionals who appear before a disciplinary tribunal do so only once in their career and usually because they have made a single (albeit serious) error. Thankfully, recidivism is rare amongst professionals. By way of illustration, of the 11 medical practitioners who have appeared before the Health Practitioners Disciplinary Tribunal since its creation in September 2004, only two had previously appeared before professional disciplinary bodies.
The second concern about Collins J’s approach to the disciplinary threshold concerns his suggestions that no disciplinary sanction was justified because Sir Roy acted in good faith. In reaching this conclusion, Collins J did properly acknowledge that a finding of serious professional misconduct “can be made even though there has been no bad faith or recklessness”. Nevertheless, Collins J did emphasise the fact that Sir Roy acted with bona fide.
Again, experience indicates that almost all professionals who appear before disciplinary tribunals do so because they have made significant but honest errors of judgment that frequently have disastrous consequences. Very rarely does a practitioner appear before the Health Practitioners Disciplinary Tribunal in circumstances where it may be said they have acted with bad faith. Of the 11 doctors who have appeared before the Health Practitioners Disciplinary Tribunal, only two could come close to being described as having either acted recklessly or in bad faith.
At this point, it may be helpful to remind you of the basic elements of the
Professional misconduct is defined in s 100(a) and (b) of the Health Practitioners Competence Assurance Act 2003. Those subsections of the Act refer to a health practitioner being guilty of professional misconduct in two circumstances, namely:
“(a) … because of any Act or omission that, in the judgment of the Tribunal, mounts to
malpractice or negligence in relation to the scope of practice in respect of which
the practitioner was registered at the time that the conduct occurred; or
(b) … because of any act or omission that, in the judgment of the Tribunal, has
brought or was likely to bring discredit to the profession that the health practitioner
practised at the time that the conduct occurred; …”
The Tribunal has explained that the test as to what constitutes professional misconduct involves a two-step process:
1. The first step involves an objective analysis of whether or not the
health practitioner’s acts or omissions in relation to their practice can be
reasonably regarded by the Tribunal as constituting:
(i) malpractice; or
(ii) negligence; or
(iii) otherwise meets the standard of having brought or is likely to bring discredit to
the practitioner’s profession.
2. The second step of the process requires the Tribunal to be satisfied that the health
practitioner’s acts or omissions require a disciplinary sanction for the purposes of
protecting the public and/or maintaining professional standards and/or where
appropriate, punishing the health practitioner.
The second limb of the test recognises the caution in B v Medical Council[2] Pillai Messiter,[3] Staite v Psychologists Board,[4] Tan v AIRC,[5] that not all errors by health professionals will justify an adverse disciplinary finding. The Tribunal must be satisfied that the established acts or omissions are so serious that a disciplinary sanction is required so as to meet one of the purposes set out in paragraph 21.2.
It will be instantly appreciated that the test as to what constitutes professional misconduct in
I will now return to the saga of Sir Roy Meadow. The GMC appealed the decision of Collins J. Part of the appeal related to His Honour’s decision that Sir Roy’s conduct did not constitute serious professional misconduct. In pursuing this aspect of its appeal, the GMC did not seek reinstatement of the original penalty imposed by the FPP. The GMC wisely recognised that the FPP had gone too far when it removed Sir Roy’s name from the Register of Medical Practitioners.
In its decision delivered last Thursday, the Court of Appeal revealed that it was divided over whether or not Sir Roy’s conduct constituted serious professional misconduct.
The most senior member of the Court of Appeal, Sir Anthony Clarke, Master of the Rolls, stated in his judgment Sir Roy had been correctly found guilty of serious professional misconduct. The Master of the Rolls said:
“Professor Meadow is not a statistician and had no relevant expertise which entitled him to use statistics in the way he did. I entirely accept the point that he made a mistake which other non-statisticians have made but that does not seem to need to exonerate him. He gave the evidence as part of his expert evidence and, however, did so in a colourful way which might well have been attractive to a jury without expressly disclaiming any expertise in the field in issue and with the only possible relevance could have been…to support the prosecution’s case that the children had both died from unnatural causes. He knew that he had no such experience and he should have expressly disclaimed any. To my mind, that amounts to serious professional misconduct, as the FPP held.”
Two other members of the Court of Appeal, namely, Lord Justices Auld and Thorpe took a different view. They acknowledged that Sir Roy had made a mistake in the way he prepared for and gave his evidence. Auld LJ said:
“…Professor Meadow was undoubtedly guilty of some professional misconduct. In his preparation for, and presentation of evidence at, the trial of Ms Clark he fell below the standards required of him by his profession. Although not an expert in the use of statistics or calculation of probability, he put forward a theory of improbability of recurrence of unexplained and seemingly natural infant deaths…. In addition, and importantly, he did not expressly draw the Court’s attention to the fact that he had no expertise in the field of statistics or calculations of the probability in this or any other field.”
Both Auld and Thorpe LJ concluded that when viewed in context, Sir Roy’s errors and colourful evidence was in fact “a side show at the trial”, and that although his evidence was flawed, it “fell far short of serious professional misconduct”.[6]
Witness immunity
The most controversial element of the judgment of Collins J involved his decision to extend immunity for witnesses in Court proceedings so as to prevent the bringing of disciplinary proceedings against witnesses such as Sir Roy.
The fundamental policy behind the approach taken by Collins J was explained by him in the following way:
“… witnesses should not be deterred from giving evidence by the fear of litigation at the suit of those who may feel that the evidence has damaged them unjustifiably.”
This policy had been previously articulated by the Court of Appeal in which it had said that expert witnesses are the beneficiary of the overarching public interest which seeks to protect the administration of justice (Stanton v Callaghan [2000] 1 QB 75) in which the Court emphasised the importance of witnesses being free to give “frank and fearless” advice and the need to avoid “multiplicity of actions”.
In his judgment, Collins J said the reason for him extending witness immunity for disciplinary proceedings was:
“Evidence before [him], and common sense points in the same direction, that the possibility of disciplinary proceedings based on a complaint by someone affected by the evidence given has a serious deterrent effect.”
Based on his concern that the administration of justice had been “seriously damaged” by the decision of the FPP, Collins J felt obliged to make it clear that experts should not fear disciplinary proceedings arising out of the nature of the evidence they give in Court proceedings.
One factor that clearly influenced the decision of Collins J was his concern that medical practitioners, and especially paediatricians, might be dissuaded from giving evidence in child abuse cases because of the perceived risk of disciplinary action. Support for this concern was derived from the evidence before the FPP from Professor Sir Alan Craft, the President of the Royal College of Paediatrics and Child Health, who said:
“Paediatricians are frightened of getting involved in child protection work. … I do not think you can actually underestimate what being reported to the GMC actually does to you – and paediatricians, I think, are pretty sensitive people…. It has a huge effect on them and on their families and on their children.”
It is easy to sympathise with Sir Alan Craft’s concerns. However, it is a basic truism that no professional will enjoy being the subject of a disciplinary complaint. As a lawyer who has spent most of his professional life defending, prosecuting and judging health professionals in disciplinary fora, I am acutely aware of the dramatic impact a disciplinary charge can have on a health practitioner and their families. Frequently practitioners slide into a state of depression when charged with a disciplinary offence. Many practitioners subject to a disciplinary charge require extensive counselling, as do members of their families. It would be a source of concern if a disciplinary charge had no impact on a practitioner. A practitioner who is impervious to a disciplinary charge may well lack the fundamental traits of concern and professionalism that one looks for in all professionals.
A further feature of Collins J’s decision was to exclude practitioners from disciplinary proceedings in relation to their forensic work. Most practitioners are required to prepare reports, and many are required to give evidence before Courts and Tribunals. Why should this aspect of medical practice be given special immunity from disciplinary action when all other aspects of a practitioner’s life can be the subject of disciplinary proceedings?
In his decision, Collins J appeared to lose sight of the fact that a disciplinary inquiry into the way in which an expert has given evidence is simply an inquiry into the way the expert undertook their inquiries and presented their evidence. The test is whether the expert adhered to the standards reasonably expected of a professional person in their position. The same inquiry takes place when a disciplinary tribunal assesses whether or not a health professional has discharged their professional obligations to a patient. There is nothing inherently unique in a disciplinary tribunal inquiring into whether or not an expert witness adhered to appropriate professional standards when preparing for and when giving evidence.
The suggestion by Sir Alan Craft that practitioners may be reticent to give expert testimony if they are at risk of disciplinary proceedings is a concern that does not withstand close scrutiny. In
The final element of the judgment of Collins J which I wish to comment on was His Honour’s “safety net” that the Court could refer an expert witness to their registration body for investigation in appropriate circumstances. The approach taken by Collins J involved a very high threshold being met before the Court could refer a practitioner to a regulatory body. In reality, the test suggested by Collins J is probably not far removed from the threshold that the prosecuting authorities would apply in
The approach taken by Collins J in extending witness immunity to effectively constitute a blanket prohibition against disciplinary proceedings against professionals such as Sir Roy Meadow caused considerable concern in a wide range of influential circles in the
Not surprisingly, all members of the Court of Appeal rejected the approach taken by Collins J. They universally allowed aspect of the GMC’s appeal. The Court of Appeal concluded that if any immunity of the kind advocated by Collins J was to evolve, it was for Parliament to legislate for its existence, it was not a matter for the Courts.
In the final analysis, Sir Roy Meadow has no adverse disciplinary finding against him because two members of the Court of Appeal concluded his conduct, although wrong, did not constitute the most grave disciplinary offence of “serious professional misconduct”. In reality, his victory is somewhat pyrrhic. Sir Roy is now 73. His reputation as an expert has been irreparably damaged. He is never likely to appear in any Court as an expert witness again. His name will now be forever associated with a fascinating effort by one Judge to extend witness immunity well beyond orthodox limits.
Professor David Southall
Before endeavouring to explain how Sir Roy’s case would have been managed in the
The ordeal suffered by Sally Clark and her family became the subject of a Channel 4 Dispatch documentary. That programme was witnessed by Professor Southall, also a paediatrician of some standing with considerable expertise in Munchausen by proxy syndrome. While watching the documentary Professor Southall formed the theory that Mr Clark must have murdered the dead
Professor Southall’s methods of investigation had previously been the subject of concern. He had apparently pioneered the use of covert video surveillance to detect cases of Munchausen’s. Professor Southall’s technique had led to 33 parents or caregivers being prosecuted. However, seven affected families have brought complaints against Professor Southall before the GMC.
Not surprisingly, Mr Clark complained to the GMC against Professor Southall’s intrusive complaint to the Police.
At the hearing before the GMC, Mr Clark’s counsel described Professor Southall as an “arrogant, dogmatic and very dangerous doctor”. Professor Southall’s counsel described his client as “a pioneer, a man who pushed the limits and went where others would fear to tread”.
In its decision, the FPP barred Professor Southall from child protection work for three years. However, an appeal was lodged to the High Court where it was urged that the penalty was “manifestly inadequate”.
The case came before the High Court Queen’s Bench Division in April this year, just two months after Sir Roy Meadow’s case had been heard by the Queen’s Bench Division. The Judge allocated to hear Professor Southall’s case was none other than Collins J. In this instance His Honour declined the application to have Professor Southall struck off but concluded that his conduct was such that he should be kept under careful review. It was interesting that in this instance, Collins J did not again make reference to his immunity from prosecution theory that he had articulated in the case of Professor Meadows.
How would the Clark’s family complaints be dealt with in
The complaints by Sally Clark’s father, and by her husband would in all likelihood have been considered by the Professional Conduct Committee of the Medical Council, established under s 71 of the Health Practitioners Competence Assurance Act 2003. I would anticipate that the PCC would, in both instances, have framed charges of professional misconduct and referred both charges to the Health Practitioners Disciplinary Tribunal.
The Health Practitioners Disciplinary Tribunal came into force on 17 September 2004. It is chaired by a lawyer (assisted by three deputies, all of whom are also lawyers). Each time the Tribunal is convened it comprises five people, namely the chairperson (or designated deputy), a lay person, drawn from a panel of eight lay people appointed to that panel by the Minister of Health, and three peers of the practitioner who is the subject of the charge. Those peers are also drawn from a panel currently comprising approximately 110 health professionals, all of whom have been appointed by the Minister of Health.
The reason why such a large panel is necessary is due to the very wide jurisdiction conferred upon the Health Practitioners Disciplinary Tribunal. It can hear disciplinary charges against members of 19 categories of health professionals, including nurses, doctors, dentists, chiropractors, psychologists, and occupational therapists. The wide jurisdiction of the Tribunal necessitates a very large pool of Tribunal members so as to ensure that at least three peers of the practitioner are available for each case.
In the two years since the Tribunal came into existence it has received 46 charges against health professionals and delivered, in total, 56 decisions. The disparity in the number of cases to decisions relates to the fact that many cases necessitate more than one decision because of interlocutory applications such as name suppression. By far the most charges have been lodged against nurses. Of the 33 cases that have been completed, all but two have resulted in adverse findings against the practitioner.
Although it is important to be cautious about judging anyone from a distance, I am confident that both Professor Meadow and Professor Southall would have been found guilty of professional misconduct by the New Zealand Health Practitioners Disciplinary Tribunal. Both plainly failed to adhere to the standards reasonably expected of professionals in their positions. Both allowed their enthusiasm for the causes they believed in to cloud their judgment and to act in a manner that fell far short of appropriate professional standards. In both cases, the penalties which would have been imposed would have been no greater than the imposition of conditions on their ability to practice. In reality, I suspect Professor Meadow would have been dealt with by way of a censure and possibly a fine.
One of the advantages to the
Early evidence suggests that it is likely the HPCA Act will reduce the number of disciplinary hearings that might have been commenced against health practitioners in
The dramatic reduction in disciplinary cases involving medical practitioners may be attributed to two key factors, namely:
1 The Medical Practitioners Act 1995 created alternative means of managing
doctors who might otherwise have been the subject of disciplinary proceedings. In
particular, the Medical Practitioners Act 1995 introduced a system of competence
assessment as an alternative means of evaluating the appropriateness of a doctor
continuing to practice medicine;
2 The Commissioner, whose office came into being in 1995 may on occasions
determine that an adverse finding by his office is in itself a significant event which
avoids the need for formal disciplinary proceedings.
As explained earlier, the HPCA Act which creates the Tribunal now provides a competence assessment procedure for all registered health professionals in
Impact of the Tribunal on professional standards in
1 Consistency in disciplinary decisions;
2 Transparency and accountability of the disciplinary process.
Consistency in disciplinary decisions
The Tribunal is now the sole authority for discipline in relation to all registered health professionals in
It is anticipated that:
1 With a single chairperson, and
2 The composition of each Tribunal which hears disciplinary proceedings being drawn
from the panel established by the Minister; and
3 All hearings being governed by the same statutory framework
there will be enhanced consistency in
Transparency and accountability
A major criticism of earlier health professional disciplinary regimes concerned the fact that disciplinary hearings were rarely held in public. Medical disciplinary proceedings only became public when the Medical Practitioners Act 1995 came into force. The hearing of disciplinary proceedings in private led to claims that the disciplinary processes were neither transparent nor accountable.
Those promoting the jurisdiction of the new Tribunal wanted to ensure that the public’s confidence in health disciplinary hearings should not be compromised by excluding the public from hearings. It was thought that the professions and the public should derive assurance about the transparency and accountability of the disciplinary process and that assurances of this nature were best achieved by providing that the Tribunal’s hearing would be held in public. Part of the rationale for public hearings can be traced to Bentham’s statement “publicity is the very soul of justice”. By this Bentham meant that transparency and accountability are essential in judicial and quasi judicial proceedings in order to ensure that the public can see what occurs in these proceedings[7].
Increasing the confidence of the public and health professionals in the disciplinary process is a major objective of the new Tribunal which will be substantially achieved through public hearings which can be seen and assessed by members of the public and the health professions.
[1] R v Clark [2002] EWCA Crim 54
[2] Unreported,
[3] (1989) 16 NSWLR 197
[4] (1998) 18 FRNZ 18
[5] (1999) NZAR 3 69
[6] per Thorpe LJ
[7] refer Scott v Scott [1913] AC 47
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Increased funding for electives has conditions
The increased funding for elective surgery announced by the Minister of Health in October last year is only available to DHBs which meet certain conditions. $200 million is available over 4 years from 1 November 2006 to DHBs who ‘consistently meet the requirements of the government’s booking policy’. Payment will be for volumes in addition to existing volumes and payment will be made ‘on delivery’.
The Cabinet paper released with the announcement suggests that the risks of the policy include the possibility of replacing existing baseline funding with the new initiative and that the new initiative may not lead to sustained improvements in prioritisation. Among the methods suggested for mitigating these risks is DHBs requiring clinicians to prioritise patients and treat them in order of priority prior to accessing the extra funding and requiring clinicians to monitor and audit their prioritisation practice.
The critical component is the ‘intervention rate’. The Cabinet paper refers to ‘the national average intervention rate’ and also to ‘work in each speciality to identify intervention rates for a group of common core elective procedures.’
The allocation of funds will be on a population basis. DHBs who are achieving intervention rates above the national average due to historic funding patterns can access funding from this initiative but it will replace money from the transitional funding pool. This suggests that DHBs that are in this position (for instance Otago) will not actually be better off.
The Cabinet paper says that the money should be used to build capacity in the public sector and that spare capacity in the public sector is to be used ahead of private sector capacity.
The funding for 2006/07 will come from existing baseline funding and out-year funding from the next budget.
The extra funding is being introduced in conjunction with work to ‘remove road blocks that have made it difficult for managers and clinicians to improve access to elective services’. The report of the ‘Protecting Elective Volumes Working Group was released at the same time. The group makes a number of interesting recommendations including the convening of individual speciality groups to determine best practice management and to investigate inconsistent treatment, and a robust debate with Colleges concerning the adoption of international workforce recommendations.
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