Health Practitioner Notification of Competence Concerns: Career Suicide v Patient Safety?

Abstract

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.