The New Zealand Medical Association is of the view that “the medico-legal environment in New Zealand is a hostile one and constitutes a deterrent to good medical practice “(Medico legal peril 2002). The NZMA follows a neutral justice strategy towards both its peers and patients. It usually has an environment focusing on discipline and complaints rather than patient care and quality improvement. It thus resulted in an unhealthy situation and “the “blame-shame culture” acts as a disincentive to quality initiatives, early detection and reporting of medical error.” (Medico legal peril 2002).
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We can analyze the present situation of New Zealand Medical Association by looking into the pros and cons of this environment.
New Zealand Medical Association
This is one of the pan professional medical organizations in New Zealand. It was formed in 1886 and after ten years it was affiliated to British Medical Association. The structure of the organization is Chairman at the top, board members, president, and standing committees. The members are medical professionals including specialists, general practitioners, doctors-in-training and medical students. The NZMA has a code of ethics which should be complied with by its members. “The NZMA aims to provide leadership of the medical profession, and promote:
professional unity and values
the health of New Zealanders
The key roles of the NZMA are
to provide advocacy on behalf of doctors and their patients
to provide support and services to members and their practices
to publish and maintain the Code of Ethics for the profession
to publish the New Zealand Medical Journal.” (About NZMA 2004).
It plays a vital role in medico political issues and has a supporting role for other medical and health organizations. NZMA offers a patient guide which entitles various rights to the patients. (1) If a patient is unhappy with the service provided by the doctor he may take the following steps: discuss the unhealthy services with the doctor by own or by a friend or by an independent health and disability advocate. If the response of the doctor is not satisfactory, he can contact the office of the Health and Disability Commissioner. (2) Right to use Advance Directive. (3) Rules (Health Information Privacy Code 1994) to safeguard the interest of the patients. Presently a negative climate which has been characterized by: a complaints regime described as “death by a thousand arrows”; a disciplinary regime built on blaming and shaming, exemplary damages claims premised on blame and punishment; and a culture of trial by media—all of which reflect a wider societal culture of blame has taken place. The annual report of Health & Disability Commissioner shows that complaints continued to increase. There are 1292 new complaints. (Peterson 2008). We can look into the problems.
“Death by a thousand arrows”
Although there is a detailed code of ethics and a patient guide for the patients, there arise lot of medical complaints in New Zealand. There arises a contradiction and it is referred to as “death by a thousand arrows”. The main cause is numerous ways of disciplinary procedure. The patients usually complain to have their own benefits which results a negative impact to the concerned doctor and affects the doctor-patient relationship.
Figure shows the Death by 1000 arrows: the multiple pathways of the current complaints system in New Zealand
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Figure 1. the Death by 1000 arrows: the multiple pathways of the current complaints system in New Zealand
As per the study of medical complaints and disciplinary procedures in New Zealand, doctors’ suggestions for change by Wayne Cunningham show that the results could be categorized into three:
The nature of medical practice in contemporary New Zealand society: this covers the complexity of practicing, limitations of medicine, expectations of the society. It says that doctors may also be committed to mistake as they are human beings. There arises a conflict between the society’s expectations and the contributions of the health care system. It was seen that doctors have the responsibility to look after the health of the patient.
Notions about the current complaint system: the complaint should be resolved immediately and the role of media in making the condition worse should be minimized.
A single complaint body as a suggestion for change: the solution for improving the multiple complaint path system was to introduce a court based system in New Zealand which was not applicable. The other solution was to have a single complaint body for solving the complaint. (Cunningham 2004).
A disciplinary regime built on blaming and shaming i.e. mistakes in general practice: mistakes happen in general practice and the quantity of complaint report is increasing day by day. The complaints may be sometimes due to inappropriate medical prescription, inadequate examination etc. “Although general practitioners in New Zealand are willing to admit seeing mistakes in practice, local doctors were much more likely to report the site of a reported mistake as somewhere other than the doctor’s office, than were surveyed doctors from overseas countries.” (Paterson 2007). In the media release from NZMA, Chairman Dr Peter Foley has pointed out that “when any event where a patient is harmed is deeply regretted, individual doctors and health practitioners working in the health system have enormous goodwill and are keen to do the best they can for patients. He also welcomed the Government’s approach which has patient safety at its core, rather than the unhelpful name, blame and shame approach which can create a climate of fear.” (Media release: support work force to reduce errors-NZMA 2008).
It is now necessary to consider the number of medico legal complaints that have been registered and how they have been disposed off. It is seen that 1292 complaints have been received in 2007/8, as against 1076 in 2005/6. This shows that the percentages of complaints are on the rise. However it is seen that 1295 complaints had also been closed. (Peterson, 2008).
It is seen that around 180 complaints were referred to the Nationwide Health and Disability Advocacy Service, which is primarily engaged in providing medico-legal services to clients. It is seen in the context of New Zealand that the government believes in enlightening the care providers in terms of educational exposures and practices and best care methods, rather than punitive measures and harsh disciplinary action. This is not to condone cases of gross care indiscipline and instances when patients’ conditions were highly compromised due to neglect or lowered degree of care, resulting in serious physical injuries or even death or trauma. There has been a case in NZ in which a woman had admitted her terminally ill husband for treatment and was also undergoing treatment after delivering a still born child. As a result of lack of proper care, her husband died in the health care institution. She had complained that the staff needed to be trained better for care of the patients and also improve their professional skills so that henceforth patients are not put to undue difficulties. Further, it is also seen that the main areas where medico legal issues crop up are lack of applicable care, deficiencies in communication and not providing basic information needed for caring and nursing the patient back to health.
Case 07HDC11318 dated. 15 October 2008
In this case it is seen that the surgeon did not inform patient about the risk of surgery and also did not take informed consent for the operation. Only when the patient was anesthetized and ready for surgery did the attending surgeon realize that this was a high risk case since liver surgery in this case was high risk and the patient was needed to be informed about the risks and dangers of undergoing such risky surgery. The Commissioner referred the case to the Director of Proceedings. (Legal update on health law 2008).
Again in the context of New Zealand it is seen that it is the age group of 41-60 that makes the maximum number of complaints regarding health care (33%), followed by age group 26-40 (32%) and again above 61 years which registered around 18%. Thus it is seen that the ‘new’ old group is more susceptible to legal and other proceedings regarding health care concerns.
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Current situation of health care practices in New Zealand
The state of health care in New Zealand has left a lot to be desired. The main factors would be in terms of an aging medical workforce and the increasing patient pressures which may be overwhelming and difficult to manage. The recent laws in this country also seem to be out of sync with requirements and have been framed not in the context of current issues. For instance, if one were to consider aspect of introduction of extended prescribing rights for nurses, it is seen that the doctor community has almost been marginalized and the importance attached to the prescribing seems to be declining over time. Often nurses or other health care people are given the unenviable job of doctors, with regard to patient care and medication. This creates areas of conflict and the people affected are the patients who are caught in the cross fire between doctors and the administration. Another reason is that the doctors feel that their profession is not given the credit it deserves and has been undermined by political influences. The government’s health regulations like the Health & Disability Commissioner Act have done little to promote reduction of doctors’ liability and legal implications in the event of legal repercussions of their actions. (Crisis in the medical workforce 2003).
The HWAC has not fully played the role that was needed, and has only been able to make local decisions. The government had wanted the HWAC to make contributions that could allow countries to survive and prosper without much ado. As a result of major changes, it is seen that the medical profession has been disillusioned and this has resulted in large number of medico-legal cases, which may not have been resolved.
Large incidence of aging population in New Zealand
Thus, it is seen that with the increasing old age population in the country, the proportion of ill-health and need for medical aid and care would also increase. With larger pressures on the medical settings, the chances of lowered care of medical aid and supervision are also evident. This could lead to death or non-recovery which is enough grounds for medico legal claims. The HWAC (Health and Welfare Action Committee) has analyzed the causes of medico legal aspects in the New Zealand context and suggest that the following aspects are important:
Training and work practices by NZ doctors in foreign countries.
Debt incurred for studies and training.
Aging population in New Zealand and higher susceptibility to diseases.
The Government policies and laws are designed and implemented to be punitive and punish erring doctors for alleged professional neglect.
The induction of the Health and Disability Commissioner Act is seen by practicing doctors as an affront to their professional abilities and competencies and they have become more fearful about use of powers by Commissioner to proceed legally for even a small infraction, or professional error.
The future of NZ medical field does not augur well since now the majority doctors are women, who may not be keen on working long hours or taking challenging assignments. Thus, the female majority may be more interested in lucrative private practice at the cost of majority public service.
It is seen in New Zealand context that most of qualified doctors in New Zealand would prefer to work abroad in order to recoup large investments made during studies and internships. Considering the fact that foreign countries like US, UK and Ireland offer lucrative private practice and employment opportunities, there is a steady but definite brain drain from this country which needs to be arrested, if the medical environment is to be stemmed and regulated. Moreover, considering the future of doctors and patients’ nexus in the country, it would augur well if qualified doctors remain in the country and contribute to the well being and development of the New Zealand medical conditions. For attaining this objective, it is necessary that the NZ Government creates amicable and pleasant work environment that could foster positive work culture and also reward the doctors appropriately for their work. It would be far fetched to assume that the doctors would like to work in NZ conditions if they are able to secure handsome employment opportunities in other places. Thus it is necessary for NZ government to wean new promising qualified doctors away from taking up work in other countries, which in effect, could mean that the country is not able to get the benefits of efforts put forth in educational pursuits and development of its population. Again, it would not really be worthwhile to put the blame squarely on the newly qualified doctors and other members of health care professional systems, since loans taken for medical education need to be recouped over short period, especially loans taken from private sources which do not have soft terms. It is also necessary that Government sees medico-legal aspects in its proper perspective and tries to find out the root of problem. It would not be worthwhile in the long term to blame the medical profession and necessary steps need to be taken for remedial measures to address the problems with a constructive bend of mind, intended for good and not to create punitive or castigating measures which, in effect would only boomerang on the perpetrators, in terms of larger quantum of brain drain of worthy health care professionals and specialist in the country. It is needed to look for remedial measures that could possibly solve the problem and not exasperate it on performance lines. In this context it is necessary to delve into the Health and Disability Commissioner Act whose “mission is to promote the rights and responsibilities of consumers and providers and to resolve complaints by fair processes and credible decisions to achieve just outcomes.” (Mission).
However, the medical profession is seeing the powers vested with the Commissioner as an outrage to this profession and fear that they would be hauled up before the Commissioners for their slightest refraction. Thus, they fear that this would curb work enthusiasm and professional efforts that is so necessary in this profession to foster and grow. The watchdog attitude of the HDCA is welcome but their disciplinary measures may send negative waves across the genuine and highly motivated medical workforce that views the betterment and development of the NZ health services as its primary motive and objective and seek to take all possible steps to ensure that this is possible forthwith. But Government co-operation and right attitude is also necessary since a large number of medicos are employed in Government or quasi-government establishments.
Thus, it is seen that major policy changes are required in order to redress and remedy the medico-legal environment in New Zealand. However, in as far as the medical profession is concerned, they are interested in the welfare of the patients.
“While any event where a patient is harmed is deeply regretted, individual doctors and health practitioners working in the health system have enormous goodwill and are keen to do the best they can for patients,” said NZMA Chairman Dr Peter Foley. (Media release: support work force to reduce errors-NZMA 2008).
Thus it is seen that while the doctors are for protecting the best health interests of their patients, the administration needs to foster all possible help in order to ensure that this is done. However, another detrimental aspect is the political intervention that is evident in patient-provider nexus. This could be a debilitating factor and could do much of damages in the long run both for the patient and his health care provider.
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Thus, it is necessary that laws need to be enforced that could address the matters of medico-legal issues and also foster a sense of co-operation and goodwill between the two. It is also necessary that the health care needs to be sanitized free of political intervention whether in private or public sector. This could possibly ensure that the health standards are as per requirements of patient standards and do not give cause for any kind of complaints, whether relating to heath care provisions, or any other.
While discussing the aspects of medico legal issues it is necessary that patients understand that doctors are also human and could commit errors which may sometimes be detrimental for the patient. Thus, it is necessary that as far as possible, patients need to take care and responsibility for their own health and life and depends as less as possible on the treatment of health care professionals. Again, they need to be candid about their conditions, for often HCP may prescribe medication depending upon the complaints and symptoms forwarded by the patients.
The following aspects need to be kept in mind:
As far as is possible the need for legal procedure through the court of law needs to be obviated and other mediation needs to be followed which are beneficial for both the parties, including an out-of-court settlement.
The suit need not be malicious, vindictive and desired for retribution against the member of medical profession.
The role of the media needs to be rightly assessed and it need not hype the issue out of proportion or depict a one sided view of the issue. It is essential that media depicts facts as it were and not the way readers would like it to be.
The main aspect would be the provisions of justice and fair play and not designed to punish one and reward the other party.
Another aspect would be in terms of using healthy competitive spirit with fundamental idea of solving the problem and not aggravating it by condemnation or invalid criticism. Thus, it is essential that healthy practices are adopted in terms of not taking any unprofessional stand that could harm the interests of the patient in the long run.
The management of the health care settings need to exercise care and discretion in handling that case, in that it should be resolved at the earliest and not create room for further litigation or court proceedings.
It is seen that mediation or third party intervention would be the best method for resolution of disputes that could not only obviate exorbitant court costs but also provide expediency and mutually acceptable method of settlement for the benefit of all concerned parties
It is seen that the area of medico-legal problems in New Zealand is a vexatious issue that may not be solved in the short term. It is therefore necessary that constructive practices need to be enforced that could effectively deal with the matter and bring succour and relief to all concerned, irrespective of their roles in the cases.
About NZMA 2004, New Zealand Medical Association. Web.
Crisis in the medical workforce 2003, New Zealand Medical association.
Cunningham, Wayne 2004, The medical complaints and disciplinary process in New Zealand: doctors’ suggestion for change, Journal of the New Zealand Medical Association, vol.117, no.1198.
Daily news, 2009. Web.
Legal update on health law 2008, Buddle Findlay. Web.
Media release: support work force to reduce errors-NZMA 2008, www.nzDoctor.co.nz.
Medico legal peril 2002, New Zealand Medical Association.
Paterson, Ron 2007, Mistakes in general practice, Medical Mistakes, vol.34, no.1. Web.
Peterson, Ron 2008, Health & disability commissioner, Annual Report for the Year.
Mission, HDC: Health and Disability Commissioner. Web.