Gaeline PhippsBarrister

Lambton Chambers

Dr Peter RobinsonChief Medico-legal Advisor

Medicus Indemnity Inc

Dr Peter Robinson LVO

Forum Purpose Possible Outcome

Inquest Inquiry into cause of

death.

Finding that doctor/nurse

caused death.

Possible Police Prosecution.

Possible referral for further

inquiry.

Publicity

POTENTIAL TRIAL FORA:

Forum Purpose Possible Outcome to Doctor

Claim to

(ACC) for

treatment

injury

To ascertain if

adverse outcome was

a personal injury by

accident by reason of

being caused by

treatment.

Data kept on number of

incidents

.

Competency

and other

hearings

related to

registration.

To determine whether

Doctor/nurse is

competence is

deficient.

Requirement to undertake

competence programme,

conditions on registration or

APC.

Forum Purpose Possible Outcome

Informal

consideration

of

nurses/doctor’

s health.

Whether physically

and/or mentally is

fit to practice.

Voluntary suspension from

practice, agreement to

conditions imposed on

practice, allowed to practice

without conditions.

Complaint to

Health and

Disability

Commissioner

To investigate and

resolve complaints

of breach of rights.

Resolution, conciliation,

referral to Human Rights

Review Tribunal, Nurses

Council/Medical Council,

Health Practitioners

Tribunal, privacy

Commissioner.

Forum Purpose Possible Outcome

Referral by

H&DC to

Health

Practitioners

Disciplinary

Tribunal.

To determine

whether guilty of

professional

misconduct.

Public hearing, strike off,

suspension, conditions on

practice censure, fine.

Referral by

H&DC to

Human Rights

Review

Tribunal.

To provide

remedies when

there has been a

breach of the Code

of Health and

Disability Services

Consumers Rights,

also hears breach

of Privacy claims.

A declaration that the Code has

been breached.

An order restraining certain

conduct.

An order requiring certain

conduct.

Damages of up to $200,000.

Any other relief deemed

appropriate.

Forum Purpose Possible Outcome

Referral by

H&DC to

Nurses

Council/Medi

cal Council

Consideration May be referred to Professional

Conduct Committee.

Professional

Conduct

Committee.

To assess the

complaint.

Take no steps, resolve by

conciliation, refer to

Disciplinary Tribunal, review

the ability or competence to

practice medicine.

Forum Purpose Possible Outcome

Complaint to

Ombudsman (for

administrative

matters).

To investigate

decisions,

recommendations

and actions of

Government

Departments and

governmental and

quasi-governmental

organisations.

Publicity.

Privacy

Commissioner

To determine if

there has been a

breach of the Health

Information Privacy

Code.

Damages of up to

$200,000.

Forum Purpose Possible Outcome

Human Rights

Commissioner

To determine if there

has been a breach of

the Human Rights

Act, e.g.

discrimination on the

basis of age, sex,

colour or race.

Damages of up to

$200,000.

Court/Dispute Tribunal

Claim for contractual

damages for failing to

provide services that

are fit for their purpose

or of an appropriate

nature and quality,

price charged not

reasonable, or supply

not made in reasonable

time.

To compensate

complainant.

Lose contract to

provide services.

Required to pay

damages.

Legislation Purpose Possible Outcome

Crimes Act - Manslaughter, e.g.

acceleration of death, failing to

provide the necessaries of life,

being grossly negligent during

treatment.

To ascertain if doctor

guilty of crime.

Range from

imprisonment to

discharge with

conviction.

Offences under the Medicines Act

for failing without reasonable

excuse to supply to an officer of

the Department of Health or Area

Health Board the name or address

of any person from whom the

doctor obtained a medicine or

medical device.

To ascertain if doctor

guilty of crime.

A maximum of three

months

imprisonment or a

fine of $500.

Criminal Prosecution:

Forum Purpose Possible Outcome

Claims for civil

damages that

are not covered

by ACC, for

example mental

anguish without

physical injury,

administrative

error.

To punish

(exemplary

damages).

To compensate

patient or patient’s

family.

Liability for damages.

Publicity.

Trial by media. To capture

viewers/readers with

a sensationalist

story.

Publicity.

Embarrassment.

Harassment by media.

Do your staff need indemnity in a no fault system?

Some might say it’s a bit like owning a car you don’t need insurance if you have no crashes but sometimes crashes are beyond your control

Should you self insure?

The art is knowing how much for

What do you want cover for

Just potential damages?

Complaints from time made

Complaints once formal

All matters arising from practice

Do you want individuals to make their own arraignments or cover from the same provider for everyone

Team response

Potential for conflicts

Do you want staff to be able to choose their legal representative or are you happy to have whomever the indemnifier says?

Do you want representation from someone with the same seniority and experience as the prosecutor or does this not concern you?

Do you want access to a 24 hour help line?

Do you want everything spelled out in a contract so it is certain

“In my letter …. I invited you to send me evidence …… establishing that [the] complaint is baseless and indicated that if you were able to do so [indemnifier] would be willing to reconsider its decision…… then this would go some way to convincing me that [indemnifier’s] decision should be reconsidered. I agree that you need legal assistance, but for the moment [indemnifier] will not pay for this.

Your [indemnifier] membership does not come with a policy document setting out exactly what you can and can’t claim for, and in what circumstances exclusions may apply. What you do get is a copy of the Memorandum and Articles of Association, which sets out the objectives of the Society and how it is to be run. It specifies that the benefits of membership are to be granted at the discretion of [indemnifier] Council.

Your options remain as set out in my letter …Please let me know if you wish to appeal this decision to [indemnifier] Council( in the UK). Please note that your appeal will not be decided before the deadline set by Council, so you will need to arrange your own representation in the interim.

Example of recent declinature letter [The indemnifier] has reviewed its position in relation to your matters currently before the Medical Council of New Zealand. … In short, [the indemnifier] is convinced that the prospects of successfully appealing the decision are extremely remote and it would be an inappropriate use of members’ money to pursue such an appeal. But in any event (merits of an appeal aside) it is inappropriate to extend indemnity for you further with respect to this matter … Accordingly [the indemnifier] has determined that we will exercise our discretion to provide no further assistance to you in this matter. That is to say, we are withdrawing support for you entirely. … We are withdrawing our instructions to [barrister] to provide support to you.

Gaeline E PhippsAura therapist

Alternative Medicine

The Non conventional is safe?

The

Way

To

Get

Things

Sorted

“The type of leukaemia (hairy cell ) Mr Smith has is potentially treatable if that is all he had. However, with his lung failure, Mr Smith cannot survive.

The group is in unanimous agreement that Mr Smith should be removed from ECMO and be allowed to die. Continuing is only prolonging his inevitable death.”

(recommendation of treating consultants)

Patient chooses or is advised to seek, treatment you believe has little efficacy/is dangerous. Sometimes at some profit to the person making the recommendation

Patient put at risk by declining conventional treatment

Patient receiving care from a number of sources which are not fully integrated

What can you do?

What should you do?

How equipped are patients to decide?

Code of Health and Disability Services

Rights of Consumers and Duties of Providers:

Right 1 - Right to be treated with respect.

Right 2 - Right to Freedom from Discrimination, Coercion,

Harassment, and Exploitation.

Right 3 - Right to Dignity and Independence.

Right 4 - Right to Services of an Appropriate Standard.

Right 5 - Right to Effective Communication.

Right 6 - Right to be Fully Informed.

Right 7 - Right to Make an Informed Choice and Give

Informed Consent.

Right 8 - Right to Support.

Right 9 - Rights in Respect of Teaching or Research.

Right 10 - Right to Complain.

Comprehension of a do not resuscitate policy was compared between 352 inpatients average age 57.9 years and 185 school children average age12.3 years

Study excluded patients believed to be cognitively impaired

*Do our patients understand? A comparison of understanding

in adult inpatients and school children EM Taylor, MP Ramsey, L Bunton NZMY 27 November 1998 449

Correct or nearly correct Adults 61% Children 79% Order Interpreted as offer to assist death Adults 10% Children 1% Wrong or unable to interpret Adults 9% Children 10% Partial Interpretations and

,misunderstandings Adults 30% Children 11%

Patients older than 70 performed less well

Adults were more likely to misunderstand ie more likely to give a negative or positive misunderstanding

Possibility that stress increased likelihood of patient misunderstanding not discounted

“…the study suggests both medical and nursing professionals may fail to recognise minor degrees of cognitive impairment and that our communications may be misunderstood…..This study adds another complexity – how informed is informed consent if the patient has failed to understand the information presented to them?”

Study 104 patients with syncope* 7/104 stopped driving after a faint 2/104 stopped driving following

recommendation from GP ALL advised not to drive by specialist Patients followed up 3 to 6 months after

advise *Syncope, driving recommendations, and clinical

reality. Maas, Ventura et al BMJ 2002;326:21 4 January 2002

82/104 (78%) remembered the advice on driving

The 9 not driving before continued not to drive

The remaining 95 ALL continued to drive

HDC covers

S3 (k) Any other person who provides, or holds himself or herself or itself out as providing, health services to the public or to any section of the public, whether or not any charge is made for those services.

Health and Disability Commissioner Act 1994

Your competition

And give real information without false hope/scaring the patient

“The upshot of all of this is that the legal position in New Zealand as to a patient’s ability to waive the right to know – to refuse to hear the necessary detail for informed consent – is uncertain. But the weight of authority seems to be that the surgeon should insist on the patient listening to sufficient detail, at least where major surgery carrying high risks is proposed.”

Auckland High Court, CIV-2007-404-003732, 12 March 2009, Wilde J.

In my opinion, consumers who seek alternative health care are entitled to be given information about the safety and effectiveness of the proposed therapy. Medical practitioners have come to expect high standards of information disclosure particularly in relation to anxious, inquisitive patients. Witness the debate around the need for disclosure of the increased risks of thrombosis from third generation oral contraceptive pills, where the absolute risk is in the order of 1 in 30,000. Surely I have a right to a similar level of disclosure about the 'quantum booster' that is to be used to treat me.

Medicine for today - Professional Responsibility and Complementary Medicine Presentation to Otago University , Dunedin

1 June 2000 Ron Paterson

Health and Disability Commissioner

In judging with services have been given to an appropriate standard, the Commissioner seeks expert opinion from a “peer” of the health provider

The bottom line is that a GP practising alternative medicine will be held both to professional standards for medical practice, and to accepted standards for the relevant alternative practice. Some GPs may decide that they should "stick to their knitting

Medicine for today - Professional Responsibility and Complementary Medicine

Presentation to Otago University , Dunedin1 June 2000

Ron PatersonHealth and Disability Commissioner

Medicine for today - Professional Responsibility and Complementary

Medicine

Code of Health and Disability Services

Rights of Consumers and Duties of Providers:

Right 1 - Right to be treated with respect.

Right 2 - Right to Freedom from Discrimination, Coercion,

Harassment, and Exploitation.

Right 3 - Right to Dignity and Independence.

Right 4 - Right to Services of an Appropriate

Standard.

Right 5 - Right to Effective Communication.

Right 6 - Right to be Fully Informed.

Right 7 - Right to Make an Informed Choice and Give

Informed Consent.

Right 8 - Right to Support.

Right 9 - Rights in Respect of Teaching or Research.

Right 10 - Right to Complain.

Right 4(5) "every consumer has the right to co-operation among providers to ensure quality and continuity of services".

This means that for patients receiving orthodox and non-orthodox health care, co-operation is a two-way street. My GP should not make it difficult for me to see a chiropractor or an osteopath for my lower back pain. Equally, my naturopath should not prevent me from seeing my GP to obtain a prescription medicine. Indeed, the duty of co-operation between providers many entail a level of co-ordination of care, so that my GP can be assured that my homeopathic potion will not counteract my prescription medicine, and vice versa.

Medicine for today - Professional Responsibility and Complementary Medicine

Presentation to Otago University , Dunedin1 June 2000

Ron PatersonHealth and Disability Commissioner

By law you and the aura cleaner, no matter what you may think of the modality act accordingly.

Put questions in writing to the alternative healthcare provider copying your questions to your patient

As you will be aware, under the Code of Health and Disability Consumers Rights, (right 4(5) patients are entitled to cooperation between their health care providers.

I write to inform you of the management plan and I have introduced for… And to seek a better understanding of the services you are providing for him

Set out usual reporting letter information ensuring that any risks of not following your recommendation are clearly set out…

Bertie informs me you are treating him with…

I know little of this treatment, could you please advise:

What this treatment actually is What risks of any are there with the treatment Whether it is contraindicated with any of the

treatment I have instigated What medical texts, literature, or other sources

you have relied upon when recommending this treatment. In this respect providing (you with) copies of those references would be most helpful for I can better assist Bertie

Of anything else that would be of assistance for Bertie and you know of…

Bertie has gained the impression from you that he need not/should not continue taking…

Could you please confirm whether this impression is correct or in other ways clarify your recommendation

Subject to anything you say, I am concerned that there is a risk to Bertie if….. I would be grateful for any comments or clarification you can provide regarding this issue

The situations can be tricky and create media interest

When in doubt seek advice from your clinical director, hospital lawyers or other advisers, or your indemnify indemnifier such as Medicus, MPS or RDA

Dear Madeline

I write to record our discussions of …

I want you to be assured that I fully respect your wish to have the most natural birth possible. But wish to emphasise that the primary aim is to have a healthy and live mother and healthy and a live baby. Who wished to emphasise some risks associated with the proposed surf birth you and your therapist have chosen

You have a placental defect this means….

You need to be admitted to hospital now

The birth will have to be carefully managed in order to ensure that you do not haemorrhage and die and that your baby can receive immediate medical care

We will not be able to get to emergency care quickly enough if you are giving birth at a beach

Many mothers find water births , soothing however it is important not to be in the water at the time of birth to avoid the baby accidentally being drowned

Even if your birth is complication free, there will inevitably be some blood that may attract sharks putting you and your baby at risk

RIGHT 6 Right to be Fully Informed (1) Every consumer has the right to the information

that a reasonable consumer, in that consumer's circumstances, would expect to receive, including -

… (b) an explanation of the options available, including

an assessment of the expected risks, side effects, benefits, and costs of each option; and

… (e) any other information required by legal,

professional, ethical, and other relevant standards

Do you have to?

On 19 March 1998 Dr D diagnosed dermatitis due to chemical poisoning, to be treated with a twelve-week course of homeopathic Paraquat injections and drainage.

Over the next three months Mrs A progressed from having eczema on her hands, to having hands that were so swollen she was unable to use them and her face had swollen so much she was unable to see. Mrs A was unable to look after herself, she felt unable to leave her property due to her looks and she was unable to drive.

After the treatments and $1500 the patient was no better Outcome?

… 4. Doctors should ensure that every patient receives

appropriate investigation into their complaint or condition, including adequate collation of information for optimal management.

5. Doctors should ensure that information is recorded accurately and is securely maintained.

… 16. Doctors should recommend only those diagnostic

procedures which seem necessary to assist in the care of the patient and only that treatment which seems necessary for the well-being of the patient."

Cole's Medical Practice in New Zealand (Medical Council of New Zealand, 2001):[17]

"The medical record

"The Council expects that any doctor who embarks upon a mode of investigation or treatment of patients that is not based upon evidence of effectiveness acceptable to the Colleges and the Council will,

…

(2) In treating patients:…

(c) Provide sufficient information to allow patients to make informed choices …

(d) Not misrepresent information or opinion. Patients must be made aware of the likely effectiveness of a given therapy according to published and accepted information, notwithstanding the medical practitioner's individual beliefs.

…

(3) In advancing knowledge, and providing treatments in areas of uncertainty where no treatment has proven efficacy:

(a) ensure that their patients are told the degree to which tests, treatments or remedies have been evaluated, and the degree of certainty and predictability that exists about their efficacy and safety."

Right 2, a consumer's right to be free from "sexual, financial, or other exploitation"

The Medical Council of New Zealand, in its statement notes that any doctor who embarks upon a mode of investigation or treatment of patients that is not based upon evidence of effectiveness, must, in assessing patients:

a) In history taking and examination, meet the standard of practice generally expected of the profession;

b) Investigate utilising generally accepted modalities; c) Reach a diagnosis that reasonable medical practitioners would

reach; and d) Advise the patient of the evidence based and conventional

treatment options. The bottom line is that a GP practising alternative medicine will

be held both to professional standards for medical practice, and to accepted standards for the relevant alternative practice. Some GPs may decide that they should "stick to their knitting".

GP who, in the course of a consultation, offered to pray for the patient and proceeded to do so, despite the patient's protestation. The doctor mentioned that the patient was healed and must have consented at a spiritual level. The unhappy patient complained the to Health and Disability Commissioner who found a breach of Right 2 (exploitation of trust) and Right 7 (services provided without consent).

Medicine for today - Professional Responsibility and Complementary Medicine

Presentation to Otago University , Dunedin1 June 2000

Ron PatersonHealth and Disability Commissioner