Browsing by Author "Miller, Anita"

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Open Access
Health Practitioner Notification of Competence Concerns: Career Suicide v Patient Safety?
(Te Herenga Waka—Victoria University of Wellington, 2015) Miller, Anita
The Code of Health and Disability Services Consumers’ Rights 1996 (Code of Rights) confirms that patients are entitled to health services that are provided with reasonable care and skill, and that comply with legal, professional, ethical and other standards.¹ “Reasonable care and skill” signifies the need for competent practice; patients are entitled to trust that their health provider has the necessary skills to safely provide health services. Likewise, a patient can expect a practitioner to practise in a manner that adheres to all relevant ethical duties, whatever those duties might be. Health providers have a corresponding duty to uphold the rights set out in the Code of Rights.² With these patient rights and provider duties in mind, the focus of this paper is on the regulatory framework established by the Health Practitioners Competence Assurance Act 2003 (the Act) and, in particular, the existence of a discretionary notification regime for health practitioners to report concerns about incompetent colleagues. This paper discusses how the Act came about, how it seeks to assure practitioner competence, the process for notification of competence concerns and the reasons why discretionary notification was adopted for practitioners. Using a patient-centric approach, it then questions whether discretionary notification is appropriate to ensure that the health and safety of the public is protected and whether ethical obligations act to address any possible deficiencies. It is suggested that professional and workplace pressures, and concerns about career advancement, may act to prevent health practitioners from exercising their discretion to notify, creating a risk that incompetent practice will go unreported and expose patients to harm. It is also argued that unless ethical obligations are consistent across the regulated professions and are enforced by relevant agencies they will not provide an effective “back-stop” to discretionary notification. Options for improvement or change are then canvassed, including the need for New Zealand based research into practitioner reporting behaviour and education and consistent guidance on the discretionary reporting threshold. Finally, it is proposed that, subject to research findings and the effect (if any) of suggested improvements, mandatory reporting may need to be reconsidered, and a proposal for amendments to the current statutory regime is set out and discussed. ¹ Rights 4(1) and 4(2). The Code of Rights is a regulation promulgated under the Health and Disability Commissioner Act 1994. ² Clause 2.
Open Access
Incapacity and Sexual Relationships in the Elderly: Balancing Autonomy and Protection
(Te Herenga Waka—Victoria University of Wellington, 2016) Miller, Anita
Older people enjoy the same freedom as other adults to enter into relationships, including sexual relationships. However, this exercise of autonomy and self-determination can be regarded as problematic when an older person is perceived to have lost the capacity to make decisions about sexual relations. While the law adopts an approach that is designed to support incompetent adults to continue to make decisions to the greatest extent possible,¹ carers and family members can become concerned about an incapacitated older person having sexual relations.² This may be because of fears of abuse or exploitation, or because of social or familial stigma about sex. Where the older person lives in an aged residential care facility (“resthome”³), carers or family may complain about sexual relationships, or even ask staff to prevent sexual contact from occurring.
Open Access
Post-legislative scrutiny in New Zealand: Challenging the status quo
(Te Herenga Waka—Victoria University of Wellington, 2016) Miller, Anita
This paper explores and comments on post-legislative scrutiny in New Zealand. It concludes that substantial New Zealand-based research is essential to inform a New Zealand-focused response to post-legislative scrutiny. It suggests that consideration should be given to Parliament better utilising its existing select committees, or creating a standalone select committee, for post-legislative scrutiny, as a means to hold the executive to account and in recognition that Parliament has some responsibility for the laws that it passes. This is particularly encouraged for legislation passed under urgency. It is also suggested that greater use should be made of pre-planned scrutiny through legislative provisions, and that consideration should be given to centralised support and guidance for post-legislative scrutiny to assist with identifying an evaluation process that is fit for purpose and to ensure consistent review methodologies are utilised.
Open Access
Settlement of Complaints by Conciliation: Resolving Patient Complaints under the Health Practitioners Competence Assurance Act 2003
(Te Herenga Waka—Victoria University of Wellington, 2017) Miller, Anita
Every patient has a legal right to complain about their health provider, and every health provider has a corresponding duty to facilitate the fair, simple, speedy and efficient resolution of such complaints.¹ But, if a patient is dissatisfied with the response, or feels unable to pursue a complaint directly with the provider, this may result in a formal complaint to an external agency. In particular, complaints may be made (or referred) to a responsible authority established under the Health Practitioners Competence Assurance Act 2003 (HPCA Act). Responsible authorities, which regulate health practitioners of various health professions,² may appoint a Professional Conduct Committee (PCC) to investigate concerns about a practitioner’s conduct or practice.³ After completing an investigation a PCC may choose, among other options, to submit a complaint for settlement by conciliation.⁴ Notwithstanding this, PCCs rarely, if ever, do so. Indeed, a review of the available annual reports of responsible authorities for the past 5 years reveals no reference to any complaints being submitted to (or resolved by) conciliation. The reason why conciliation is underutilised has not previously been explored, although the apparent reluctance is arguably at odds with the perceived benefits of facilitated outcomes in patient complaints, particularly where there is an ongoing therapeutic relationship. With this in mind, this paper critically examines and comments on the statutory scheme for conciliation under the HPCA Act, with a view to identifying the possible reasons for its lack of use and to consider its future. It explores what is meant by conciliation, the reasons for its inclusion in the HPCA Act and the statutory model itself. It determines that little thought was given to the meaning, form or purpose of conciliation, or its interface with the role of the Health and Disability Commissioner in resolving patient complaints. Ultimately, it concludes that while conciliation may be suitable for some patient complaints, its lack of use points to the need for a fundamental reassessment of the statutory model, and possible legislative amendment. Robust theoretical analysis, which was lacking in its adoption, and empirical research into PCCs (and others) understanding of conciliation, is necessary to inform that process and to decide the future for conciliation. ¹ Health and Disability Commissioner (Code of Health and Disability Services Consumers’ Rights) Regulations 1996, Right 10(1), 10(3). ² As at 21 March 2017 there are 21 health professions regulated by 16 responsible authorities. The professions include anaesthetic technicians, chiropractors, dentists, dental therapists and technicians, medical practitioners, medical laboratory scientists, medical radiation technicians, nurses, occupational therapists, optometrists, osteopaths, pharmacists, psychologists, psychotherapists, and physiotherapists. Responsible authorities include, for example, the Medical Council, Nursing Council, Dental Council, and Physiotherapy Board. ³ HPCA Act, s 68(3). ⁴ Section 80(3)(c).
Open Access
What Took You So Long? Exploring Delays by the Health and Disability Commissioner And Delay as a Basis for Judicial Review
(Te Herenga Waka—Victoria University of Wellington, 2017) Miller, Anita
There are many reasons why administrative decision-making may take longer than affected individuals might like. The lack of adequate resources or an unexpected increase in workload may contribute to the length of time taken to reach a decision. Likewise, the complexity of the matter under consideration, or the practices adopted by a decision-maker, may influence timeliness. That said, it must be the case that decision-makers have some responsibility (statutory or otherwise) to act in a timely manner. Indeed, it is arguable that those exercising a power of decision ought to be “answerable to, and should be responsive to, those affected by that exercise of power.”¹ What, then, can be done by those who are left waiting? One option for affected individuals is to turn to the courts which, in their supervisory capacity, play an important role in holding statutory decision-makers to account. Delay with administrative processes has previously attracted the courts scrutiny, but there are limitations to the exercise of the courts discretion. In particular, there appears to be reluctance to intervene in the absence of inordinate delay coupled with specific prejudice flowing directly from the delay. And, in some cases the court may be concerned (or persuaded) that its intervention in an incomplete process is premature. To explore these matters further, this paper considers the courts preparedness to inquire into delay by using the investigative processes of the Health and Disability Commissioner (the Commissioner) to evaluate and (where appropriate) test the current law. The Commissioner, who has a statutory discretion to investigate health professionals for alleged breaches of patient rights, operates under a statutory framework which has as its principal purpose the “fair, simple, speedy, and efficient” resolution of patient complaints.² Notwithstanding this, anecdotal evidence suggests that – at worst – some investigations may take up to two years to complete. Among other things, it is argued that the Commissioner’s statutory purpose is a clear direction to act in a timely manner, and that his or her failure to do so is deserving of the courts scrutiny and intervention irrespective of any prejudice to the health professional under investigation. It is also suggested that although detriment arising from delay may be a helpful marker as to the seriousness of the departure from expected standards of procedural fairness, any assessment of harm resulting from the delay should be preserved for consideration of an appropriate remedy. ¹ Justice Alan Robertson “Natural Justice or Procedural Fairness” (4 September 2015) Federal Court of Australia. (accessed 3 September 2017). ² Health and Disability Commissioner Act 1994, s 6.