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SUBMISSION TO THE HEALTH COMMITTEE ON THE INJURY PREVENTION, REHABILITATION, AND COMPENSATION AMENDMENT BILL
24 SEPTEMBER 2004
1 INTRODUCTION
1.1 The Association of Salaried Medical Specialists (the Association) represents
salaried senior doctors and dentists. The Association was formed in April 1989
to advocate and promote the common industrial and professional interests of
our members.
1.2 The Association has over 2,300 members, the majority of whom are employed
by District Health Boards (DHBs). About 92% of senior doctors and dentists
employed by public hospitals run by DHBs are members of the Association.
While most of our membership is in secondary/tertiary care in the public sector,
a number work in primary care and outside DHBs. We have members at
hospices, community trusts, iwi health authorities, union health centres, the New
Zealand Family Planning Association and the New Zealand Blood Service.
1.3 The Association is affiliated to the Council of Trade Unions (the CTU). The CTU
has made detailed submissions on areas in which the Bill fails to address
breaches by New Zealand of ILO conventions dealing with compensation for
workers injured in the workplace. The Association supports these submissions
but will limit this submission to the areas of the Bill dealing with medical
misadventure.
1.4 The Association advises many specialist medical practitioners who are looking at
taking up an appointment in a
system and the low levels of medical indemnity insurance that follow from it are
an important incentive for these hard to recruit practitioners to take up a job in
1.5 We have frequent approaches from our sister organisations internationally for
information about ACC. The reforms planned to medical misadventure in this
Bill are keenly followed internationally and offer other countries a model for
their seemingly intractable problems with medical indemnity.
1.6 This Bill is the outcome of a review conducted by ACC and the Department of
Labour that began more than two years ago. The ASMS made a submission to
the review. After the initial submissions the review team dropped the options
that were not supported by submitters and undertook a further round of
consultation with ‘stakeholders’, including the ASMS. The result was a textbook
example of a successful consultation process. Those consulted had a
perception of a genuine interest in their views.
1.7 We welcome this Bill. At present the provisions covering medical misadventure
are at odds with the no fault principle of ACC and do not aid the building of a
safety culture in the
1.8 The Association does not wish to make oral submissions.
2 THE CURRENT SYSTEM
2.1 The Association, along with many other health professional groups, has had
longstanding concerns with the way medical misadventure has been operating
since the passage of the 1992 Accident Rehabilitation Compensation Insurance
Act.
2.2 In order to receive compensation from the scheme an injured person either has
to find fault with a health professional (or more recently a system or
organisation) which does not sit well with a no fault scheme. Alternatively their
injury has to meet extremely stringent standards of rarity and severity. The
criteria for this arm of the scheme appear to have little justification in justice or
policy other than to limit costs.
2.3 This has meant that victims of the unintended consequences of medical
procedures have had to face hardship or many years of delay before receiving
the support that they should have been entitled to as victims of accidents.
2.4 It has also had the effect of pitting the patient against the professional when
often the only way to get ACC cover has been to prove negligence by the
practitioner. This has played its part in the complaint culture which so
demoralises doctors.
2.5 Reporting by ACC of doctors who have been the subject of a finding of medical
error or of medical misadventure has created undue frustration and intense
pressures for our members. In particular the idea that those who have given
treatment entirely properly that has had an unintended severe outcome should
be reported on as if they have been at fault and that conclusions should be
drawn that they are somehow committing an undetected error or are being
covered for by colleagues, is repugnant.
2.6 A large number of misadventure claims involving one practitioner may mean
that she or he is practising in a more difficult area of medicine or it may mean
that he or she has been the victim of the mix of regrettable and undue panic
and blatant opportunism that surrounded Dr Graham Parry.
2.7 The introduction of a safety culture in our health system is dependant partly on
the ability to uncover the root cause of adverse events. This needs an open,
non-adversarial system. Removing the concept of medical error is a necessary
precondition.
2.8 An interesting point, highlighting an anomaly in the current system which would
be corrected by the current Bill, was raised by one of our members in the
course of our consultation on this issue. He points out that the same injury
(sometimes in the pursuit of the same “cure”) that is sustained when someone
is being treated by a non-registered practitioner would be covered by ACC
under the current legislation.
2.9 We believe putting this Bill into law will result in an improved situation for
patients who find themselves unintentionally injured as a result of a medical
procedure and will improve the environment for our members who do their best
to minimise risk of harm to patients but cannot always avoid it.
3 COSTS AND FORMS
3.1 Since the introduction of the ACC system there has been a perverse incentive to
classify an event as an accident rather than a sickness. It has never been
successfully argued that there is a genuine reason in social justice for the
distinction. The equation for compensation for accidents through a no fault
scheme has always been offset against the cost and inequity of actions in tort.
There is no such offsetting saving for compensation for sickness. There is no
immediate solution to this conundrum failing an entirely free public health
system and more widely a much more generous social welfare system.
3.2 This means that there is an incentive for events to be interpreted as accidents
by patients if they are at all susceptible to that interpretation.
3.3 The Association agreed with the outcome of the review that there was no need
to import a standard of ‘seriousness’ to limit claims. Some of our members
have commented, since the review results came out, that there is the potential,
for instance, for adverse drug reactions to be classed as accidents and that this
will lead to a ballooning of costs beyond the level costed by ACC. There is also
concern that this will add to the level of “form filling” in areas which have
hitherto been exempt.
3.4 Clear criteria (such as making it clear, that nausea after anaesthesia was not a
treatment injury and could be an anticipated part of the treatment) and close
coordination with existing hospital systems for adverse events would minimise
this.
3.5 There is always a potential risk with legislation such as this Bill of “unintended
consequences”, in this instance, increases in compliance costs and increased
transaction costs for medical and dental practitioners which ultimately translate
into decreased “productivity” in the health sector. These could be monitored by
the Minister responsible for the Bill establishing a practitioners’ advisory panel
to provide practical advice and guidelines on how this risk could be avoided.
We suggest that the Committee recommends this in its report back to
Parliament.
