NZ Unique Medico-Legal System

Question 1

How is NZ medico-legal system unique compared to other common law jurisdictions?

Answer 1

Due to ACC.

the enactment of the Accident Compensation Corporation Act converted NZ from a tort based medico-legal system to a no-fault compensation system.

ACC means that you cannot sue a practitioner for an injury caused by them instead you are compensated through the national scheme (paid into by tax payers). Whereas in other jurisdiction that do not have ACC you are able to sue to practitioner personally in order to be compensation.

Question 2

What was the driving force for NZ moving away from a tort based medico-legal system?

Answer 2

People who were injured at work or in motor vehicles were not provided with any means of compensation. This meant there was an access to justice gap. ACC filled the gap.

Other incentives were that tort based system required litigation which was expensive - again an access to justice issue.

If you pursued litigation you would end up spending the compensation on legal fees - any benefits of suing were lost meaning victims were not pursing claims.

Question 3

What are the element of traditional tort based claims used in other jurisdictions?

Answer 3

(1) DOC
(2) Breach of DOC
(3) Breach causative of harm
(4) Duty to correct or compensate.

Question 4

Is fault required under ACC?

Answer 4

No - provides compensation regardless of fault.

A tort based system requires fault because otherwise there was no one to get the money from.

Question 5

What is the Section 319 statutory bar and its exception?

Answer 5

Section 319 sets out the trade off as a consequence of the no fault scheme - we no longer have the right to sue for personal injury.

Exception: You can still sue in exemplary damages but success in such a claim is very difficult - court held in Couch v AG that not even gross negligence warrants such damages unless there is some element of conscious or reckless conduct (subjective recklessness threshold).

Question 6

What are the two preliminary requirements to coming within the ACC Act?

Answer 6

(1) Suffered a “personal injury” within definition in section 26

(2) The personal injury was caused by an “accident” or “treatment injury” that is not ordinary consequence of that treatment.

Question 7

What are the possible impacts on provider mind set as a result of our no-fault system?

Answer 7

Because providers are now immune from civil liability / threat of personal financial accountability this may have decreased their duty of care because anything that goes wrong is not going to be at their expense.

Without this incentive to take highest DOC we now rely on providers incentive being that they genuinely want to do a good job and help people.

As practitioners cannot be personally sued has possibly meant that practitioners are now more open about the mistakes which can provide important lessons for all practitioners and increase quality of practice as a whole.

Question 8

Why was the Code created?

Answer 8

Focus of the code was on consumers rights rather than providers duties.

It is about responding to system failures and learning from them = about resolution not retribution (punishment).

Created to provide a incentive to uphold consumers right because if they don’t they can be held accountable.

Question 9

What legal status does the Code have?

Answer 9

The code is a regulation and a product of secondary/delegated legislation.

Therefore it has full and binding legal authority.

Question 10

What is the parent act of the Code?

Answer 10

Heath and Disability Commissioner Act 1994

Question 11

What does clause 1 of the Code set out?

Answer 11

That every consumer has rights and that providers have a duty to take proactive action to make sure that consumers are aware of these rights and enabled to exercise them.

Question 12

What does clause 2 of the Code set out?

Answer 12

The 10 rights of consumers

Question 13

What is Right 1 of the Code?

Answer 13

Right to be treated with respect.

Question 14

What is Right 2 of the Code?

Answer 14

Right to Freedom from Discrimination, Coercion, Harassment and Exploitation (sexual, financial and other).

Question 15

What is Right 3 of the Code?

Answer 15

Right to have services provided in a manner that respects dignity and independence

Question 16

What is Right 4 of the Code?

Answer 16

Right to Services of an Appropriate Standard.

Importantly Right 4 (1) reads that every consumer has the right to reasonable care and skill. (Analogous to a tort based assessment).

Question 17

What is Right 5 of the Code?

Answer 17

Right to Effective Communication

… which “enables” the consumer to understand the information provided.

Question 18

What has the court said about Right 5(1) “enables”?

Answer 18

Enables is not that the provider guarantees the patient possesses actual understanding instead is about facilitating understanding.

Enables involves some level of checking for understanding of information because that is inherent in effective communication.

Question 19

What is Right 6 of the Code?

Answer 19

Right to be fully informed

… about information that a reasonable consumer in that consumers circumstances would expect to receive…

(mixed subjective and objective)

Question 20

What is Right 7 of the Code?

Answer 20

Right to make an informed choice and give informed consent

(1) Services may be provided to a consumer only if that consumer makes an informed choice and gives informed consent, except where any enactment or the common law por any other provision of this Code provides.

Question 21

What is Right 8 of the Code?

Answer 21

Right to Support

Question 22

What is Right 9 of the Code?

Answer 22

Rights in respect of teaching and research

Question 23

What is Right 10 of the Code?

Answer 23

Right to Complain

Question 24

What is the Clause 3 defence of the Code?

Answer 24

A provider is not in breach of the code if they have taken reasonable actions in the circumstances to give effect to the rights in code.

The onus is on the provider to prove that they took reasonable care.

“Circumstances” refers to all relevant circumstances including clinical and resource constraints.

Question 25

Who does the Code apply to?

Answer 25

Clause 4 states it applies to “Health Care Providers” which is defined in s 3 of the HDCA.

Code has broad reach.

Question 26

What is the complaints process under the Code?

Answer 26

A complaint can be made by the consumer or by the family member on behalf (if consumer passed away) to the Health and Disability Commissioner

If unserious complaint it can be dealt with by the provider, referred back to the advocate, to ACC or to practitioner registration body.

If serious breach of the code then the HDC can initiate a formal investigation. A formal investigation uses an independent expert (likely a peer of the provider) who will examine the standard of care given by the provider. The provider and consumer then has an opportunity to respond to the investigation. Following that a final opinion as to whether or not there was a breach is made. The final opinion would state what exact rights of the code have been breached.

The Act sets out the available remedies for a consumer who was subject of a breach of the code. Tends to be that the provider provides an apologies to the consumer or their family, for the commissioner to sends its report to the medical council/registration authority or refer it to the Director or Proceedings who has the discretion to bring proceedings to Tribunals. It has authority to bring to Health Practitioner Disciplinary Tribunal or the Human Rights Review Tribunal.

Question 27

What was the unfortunate experiment and why is it relevant?

Answer 27

The “unfortunate experiment” is referring to the medical professional at the National Women’s Hospital who, without gaining the consent of his patients with cervical cancer, withheld them from standard treatment with the hope to prove that it was unnecessary. As a result some patients were critically harmed.

The Health & Disability Commissioner Act 1994 and Code was enacted upon recommendations made as a result of the cervical cancer inquiry.

The experiment led to the developments which have transformed New Zealand’s medico-legal environment for the better. Hence it can now be viewed a “fortunate experiment”. - said by PDG Skegg.

Question 28

What is the Director of Proceedings involvement in our medico-legal system?

Answer 28

Where there is a serious breach section 45(2)(f) of the Health and Disability Commissioner Act (HDC Act) allows for the HDC to refer a case to the DOP.

The DOP are a step above the Code = they are an independent office of Parliament.

After a complaint is referred to the DOP they have the discretion to begin proceedings of the complaint in Tribunals - either HRRT (human rights review tribunal) or the HPDT (health practitioners disciplinary tribunal).

Question 29

How can a case on a medico-legal issue reach court?

Answer 29

First a complaint needs to be made to the Health and Disability Commissioner.

The complaint needs to be serious enough that a formal investigation is initiated.

The formal investigation would have to result in a finding that there was a breach of the Code.

The Commissioner would have to consider the breach serious enough to refer the finding to the Director of Proceedings.

DOP would then have to exercise discretion to bring proceedings to Tribunal (free of legal fees).

Tribunal decision would then need to be appealed - there is only a right of appeal in the HPDT (no right of appeal in the HRRT).

Alternatively: Under 2004 Reform of section 51 people have the ability to bring a claim to the tribunal themselves if the Commissioner held there was a breach but does not refer to DOP or if the DOP declines or fails to take proceedings. If section 51 pathway is taken you have to pay legal fees yourself.

Question 30

Does the HRRT look at the Commissioners findings?

Answer 30

No - the Tribunal looks afresh at whether there was a breach of the Code and do not rely on the Commissioners investigation.

Question 31

What awards are available from the HRRT?

Answer 31

Declaration

Order of restraint or redress

Damages

Any other relief the tribunal sees fit

Question 32

What is the key exception to the HRRT awarding damages?

Answer 32

Section 52(2) - if a person has suffered a personal injury covered by ACC they cannot get damages, unless it is punitive damages

Question 33

Who is the plaintiff in cases that go to the HRRT?

Answer 33

The Director of Proceedings

Question 34

What percent of complaints to the Commissioner reached investigation in 2021/2021 statistics?

Answer 34

Less than 5%

Question 35

What is the difference between the HRRT and the HPDT?

Answer 35

The HPDT hears disciplinary charges laid against registered health professionals (eg, doctors, midwives, dentists, nurses). These charges cover instances such as a practitioner’s care having fallen below accepted professional standards seriously enough to warrant a penalty being imposed. These charges are not criminal charges.

Whereas, the HRRT hears cases involving issues of Privacy Law and Human Rights, and breaches of the Code. It can hear cases involving both registered and non-registered health providers.

Question 36

How were health professions regulated prior to the Health Practitioners Competence Assurance Act 2003 and why was the Act enacted?

Answer 36

Before 2003 each health profession had their own statute and own individual processes e.g., the Nurses Act which mean that each profession regulated themselves because there was a view that they knew best how their profession should be regulated. Under this regime there was no requirement to update their practice and this became a risk to patients.

Around this time around 13% of all people admitted to hospital faced adverse affects. In 2001 a report was issued by QC Helen Cull and one of the things she came up with was that we needed to bring all the processes of professionals together and make professionals subject to the same law.

As a result the HPCAA 2003 was enacted for a consistence regime that applied to all health practitioners.

Question 37

What is a Responsible Authority?

Answer 37

Section 5 of the Health Practitioner Competence Assurance Act:
in relation to—

(a) a health profession, means the authority appointed in respect of the profession:

(b) a health practitioner, an applicant, or a former health practitioner, means the authority responsible for the registration of practitioners of the profession that the person concerned practises or seeks to practise or has practised.

E.g., for nurses the responsible authority would be the Nurses Council.

Question 38

Why is the responsible authority important?

Answer 38

The responsible authority will in most cases be the first port of call for any competence issues.

Question 39

What are two key mandatory duties within the Health Practitioner Competence Assurance Act 2003?

Answer 39

Section 45 = where a practitioner believes another practitioner is no longer capable of functioning then you must report to the responsible authority.

Section 67 = if a person is convicted of a criminal offence that carries with it a conviction with more than 3 months imprisonment then the responsible authority must be notified- if the council then believe it raises concerns for their professional conduct then they refer it to the professional conduct committee (PCC).

Question 40

What is the PCC?

Answer 40

profession conduct committee

Question 41

What does the PCC do?

Answer 41

The PCC investigates notifications referred by the responsible authority and decides next steps e.g., refer to police, some form of medical treatment, prosecute by taking to HPDT or to deregister their practicing certificate.

The PCC is an independent subset which is comprised of three people - two peers and 1 layperson.

Question 42

Who is the HPDT comprised of?

Answer 42

A lawyer
1+ deputy chairs
Three pairs of the provider
One lay person

Question 43

Is there a right of appeal in the Tribunals?

Answer 43

Only in the HPDT

Question 44

What is the two limbs test to finding professional misconduct confirmed by the COA in F v MPDT?

Answer 44

(1) Is professional misconduct established?

And (2) is the misconduct significant enough to warrant discipline?

Question 45

Is professional misconduct a subjective or objective test?

Answer 45

Objective - COA in Seidenfaden.

Question 46

What is the standard of proof for professional misconduct?

Answer 46

Professional misconduct is a civil wrong therefore the standard of proof is on the balance of probabilities.

Question 47

What are the facts of Seidenfaden v DOP (COA)?

Answer 47

Dr S was an Anesthetist.

Failure to respond to and then take adequate step to complaints of pain during birthing operations (didn’t provide pain relief in respond to clear signs of significant pain - verbally and non verbally by kicking leg and tight abdominal muscles).

Four witnesses present at the birth said she was clearly in significant pain.

When Dr S was asked if she should be given pain relief he said no point because “it’ll soon be over”.

Breach found by HDC and then referred to DOP and then HPDT.

Tribunal decision that there was no breach was appealed to HC and then again to COA.

Question 48

Why did the Tribunal not think there was a breach in Seidenfaden?

Answer 48

Tribunal held that there was not a breach because her leg moving was insufficient evidence of pain. Dr S said he was not aware of her pain. Tribunal held that his awareness was poor but not enough to reach professional misconduct.

Question 49

What did the HC and COA say in Seidenfaden?

Answer 49

HC found Tribunal was wrong because the test is objective (it was objectively clear she was in significant pain and that pain relief was required) and held there was breach, COA upheld that.

COA said critical question is whether ought to have know - because four other people said it was clear he was held to have breached his DOC.

COA confirmed that whether there is malpractice/negligence is an objective test.

Question 50

What is required to establish “professional misconduct”?

Answer 50

Section 100 HPCAA

(a) Any act or omission that amounts to malpractice or negligence

OR

(b) Any act or omission that has brought or was likely to bring discredit to the profession

+ (c) - (g)

Question 51

What does discredit to the profession mean?

Answer 51

Conduct that has lowered the standard of care of the profession.

Question 52

What is the difference between malpractice and negligence?

Answer 52

Malpractice = an immoral wrong

Negligence = departure from the duty of care standards

Question 53

What standard of misconduct is required to warrant disciplinary sanction?

Answer 53

Threshold is unclear.

We know that: ordinary negligence or malpractice is not enough - F v MPDT 2005.

Threshold of significant enough is either:

“Deliberate departure from expected standards or such serious negligence as to portray indifference/abuse of professional privilege” - J v DP = Pillar test (higher threshold)

OR

“Notable or serious departure from acceptable standard but the threshold should not be unduly high” - Martin v Dip = Martin test (lower threshold)

Question 54

Is there a DOC relationship between all health providers and consumers?

Answer 54

Yes - For every professional relationship where you are providing a service you are required to uphold a duty of care

Question 55

What is the “reasonable standard of care” required by a health provider?

Answer 55

The accepted practise by profession.

Determine the accepted practise is a two step test (Bolam Test):
(1) Descriptive aspect = look at the profession and see what reasonably competent practitioners would have done in that situation.
(2) Evaluative aspect = is the opinion reasonable and responsible?

The evaluative aspect was reemphasised in Bolitho as people where just taking all medical evidence to be true (misapplying the second limb of the Bolam test) - but it is important to evaluate medical evidence because differences in views can be reasonably held by competent people therefore it cannot solely be a matter of medical judgement.

Bolitho emphasised that you cannot have a pure Bolam test because that risks bias (medical providers would protect their own because they never know when they may be in that position). The medical opinion has to be reasonable and responsible.

Therefore, the accepted practise by profession is a starting point meaning that it is not always going to be definitive. If the HDC departs from the accepted practise of the profession (expert opinion or clinical guidelines) the reasons why must be identified and explained.

Overall when determining the required standard of care in a medical context is a legal test which includes a descriptive standard (what would competent practitioners in the field have done), evaluative standard (is their opinion reasonable and responsible) and a normative standard (what ought to be the standard - using relevant statutory framework and its objectives).

Question 56

How is the Crimes Act engaged in health providers DOC?

Answer 56

Provisions in relation to the preservation of life.

Case law tells us that if a doctors car causes the death of a patient that can be homicide - remember homicide is not a crime in itself - it must be culpable. Section 160(2)(b) states that in order for homicide to be culpable it there must have been an omission to observe any legal duty. What this means is that the act of the doctor must have been in breach of duty of care in order for the act to result in culpable homicide = manslaughter.***

Section 155 = imposes duty on persons doing dangerous acts and explicit mentions health care as a dangerous act.

Section 156 = duty to persons in change of dangerous things.

Section 157 = duty to avoid omissions dangerous to life.

Question 57

When will a doctor be criminally responsible for an omission of legal duty?

Answer 57

1997 Crimes Act Amendment introduced section 150A which legislated that you are only criminally responsible for admitting legal duty if major departure of standard of care.

We have a two step approach to criminal negligence:
(1) failure to exercise reasonable care and skill (objective) and

(2) it was a major departure from the standard expected.

Question 58

What is a major departure from DOC?

Answer 58

Major departure possibly means that there must be some sort of recklessness involved e.g., with some type of intent - seeing a risk and running it.

Question 59

What is the Bolam test?

Answer 59

Used to work out standard of care:

(1) Look at the profession and see what reasonably competent practitioners would have done in that situation (descriptive aspect).

(2) Evaluate whether the opinion reasonable and responsible?

Question 60

What case sets out NZ common law standard of care/acceptable profession conduct?

Answer 60

B v Medical Council

Question 61

What are the facts of B v Medical Council?

Answer 61

B’s patient, a 28 year older women present with a lump in right breast whilst breast feeding. Agreed to review after stopped breastfeeding so had second consultation 3 months later. Patient did not action getting lump removed and died.

Complaint that B did not communicate the seriousness of the condition and failed to put in place a plan. Meant diagnosis was delayed.

Question 62

What was the outcome of B v Medical Council?

Answer 62

Held that ….

Question 63

What are the facts of Adam v ACC?

Answer 63

A was born by late caesarian - by no fault he was born with brain injury that caused cerebral palsy.

Argued that available treatment could have been given in “timely manner”

Key issue on appeal was meaning of ‘treatment injury’ in s 32 ACA and definition of ‘treatment’ in s 33 ACA.

Question 64

What was the outcome of Adam v ACC?