Journal of the New Zealand Medical Association, 28-November-2008, Vol 121 No 1286
Inquiries into health care: learning or lynching?
Nordmeyer Lecture (Wellington School of Medicine, University of Otago,1 17 September 2008)
For many children of the 1950s, like myself, Nordmeyer was the infamous Minister of Finance who delivered the “Black Budget” of 1957. I also knew that he was a former Presbyterian Minister, which rather endeared him to me. And that was about it.
Thanks to a superb new biography Nordy by Mary Logan,2 I now know that as Minister in Kurow (Waitaki Valley, North Otago), Nordmeyer witnessed terrible suffering during the depression years of the early 1930s, and became convinced of the need for better health service provision for the public. He was impressed by the example of the Public Works Department health scheme for workers on the Waitaki Hydro Dam.
With his friend Gervan McMillan (the local GP), Nordmeyer developed the concept of a health and social security scheme. McMillan and Nordmeyer both entered Parliament as MPs in the Labour landslide of 1935, and Nordmeyer (as chair of the Select Committee) became the architect of the Social Security Act 1938, which made comprehensive provision for health, for security of income, and for the general welfare. It paved the way for free hospital care and access to a wide range of health benefits, many of which were rolled out while Nordmeyer was Minister of Health from 1941 to 1947, and which endure today.
One of the most fascinating aspects of Mary Logan’s biography is the tenacity and good grace with which Nordmeyer debated with the New Zealand branch of the British Medical Association, in trying to ensure free primary medical care without a surcharge. The BMA ran a very effective public relations campaign, and demonised Nordmeyer and his reforms. Debate about free primary medical care and fees surcharges continues to this day.
If you have spent 8 years undertaking health inquiries, and dealing with the official representatives of the medical profession, you learn a little bit about tenacity, and the power of myth and perception to obscure evidence and reality. Which leads me to the topic of my lecture: Inquiries into health care: learning or lynching?
Why do we hold inquiries into health care? In the foreword to the recent Law Commission report A New Inquiries Act, Geoffrey Palmer says that “[s]ince its inception, the New Zealand Government has had a culture of inquiry” and that “[m]odern government is an endless procession of policy reviews, investigations, and inquiries of one sort or another”.3 If that is true of government generally, it is certainly true of health care.
In a report in 2005, the British House of Commons Public Administration Select Committee drew up a list of the purposes of government inquiries—establishing the facts, learning from events, catharsis or therapeutic exposure, reassurance, accountability, blame and retribution, and political considerations,4 to which the Law Commission has added “policy development”.5 A 1996 collection of essays entitled Inquiries after Homicide (in the context of inquiries after homicides by psychiatric patients in England) offers a shorter list: learning, catharsis, reassurance, and accountability.6
I think these are the main reasons why inquiries are held. I take “learning” to encapsulate “establishing the facts”. After all, finding out what actually happened is a prerequisite to any learning. Political considerations are doubtless often relevant to a Government’s or Minister’s or Select Committee’s decision to call an inquiry—we saw this with the Gisborne Cervical Cancer Screening Inquiry, which enabled the Minister of Health to get the issue off the front pages in the run-up to the 1999 election. And some Commissions of Inquiry are clearly intended to help develop policy—the current Royal Commission of Inquiry into Auckland Governance is a good example. Warwick Brunton’s research has identified five major policy-advisory inquiries from 1858 to 1996, which helped shape national mental health policy.7
So, if we focus on the shorter list, the tension is immediately obvious. There is a spectrum of reasons: learning, catharsis, reassurance and accountability. It is this tension that I sought to capture in my question, “Learning or lynching?”
When something goes wrong in health care, the health professionals involved in the incident will often engage in long, hard self-reflection about their own practice. They may discuss a case informally in a peer review meeting. Or they may present it more formally in a setting like a mortality and morbidity meeting. These are important, highly desirable activities. They reflect the long and honourable tradition of a “culture of inquiry” in medicine. In an important paper in 1983, Neil McIntyre and Karl Popper argued for “the critical attitude in medicine”, what they called “the need for a new ethics”, to “search for our mistakes and investigate them fully...to be self-critical”.8
Criticism and review by peers is an essential form of inquiry. But it does not connote the element of formal, external review that comes to mind when we speak of an “inquiry into health care”.
This leads me to a further distinction. If a hospital or district health board launches an investigation into an adverse event, or even into a series of events, we call that an internal inquiry. Of course the board might decide to commission an external reviewer (often another clinician from the same field, but sometimes a panel). Canterbury District Health Board (CDHB) did this last year, to review the care provided to 25-year-old Dean Carroll, who died as a result of overwhelming sepsis less than 12 hours after being discharged from Christchurch Hospital Emergency Department. It was a careful review by people external to CDHB—but it was dismissed by the family as a whitewash.
This is an important distinction. Internal inquiries (even if undertaken by external reviewers) may be equally effective for learning purposes—finding out what happened and making recommendations for improvement—and they have become the primary vehicle for reviewing serious events in hospitals. However, a lack of independence may prevent internal inquiries fulfilling the purposes of catharsis, reassurance and accountability.
And so we come to the sort of inquiries I had in mind with my topic for this lecture: inquiries undertaken by an independent, external body.
Independent inquiries in the health sector take a variety forms. The main types of health inquiry are those undertaken by a Coroner, by the Health and Disability Commissioner (HDC), or by a one-off inquiry, usually appointed by a Minister. Each has formal status or official standing. They also have specific powers (for example, to compel the provision of relevant evidence), either under the statute that creates the inquiry body (such as the Coroners Act or the Health and Disability Commissioner Act), or by Ministerial appointment as a Commission under the Commissions of Inquiry Act 1908, or as a “special health inquiry” under the New Zealand Public Health and Disability Act 2000, with more limited powers.
All inquiries have a specific function and terms of reference. In the case of the Coroner, the purpose of an inquest is to establish the cause and circumstances of a reported death (such as during medical or surgical treatment), and to make recommendations or comments to reduce the likelihood of other deaths in similar circumstances.
In the case of HDC, the inquiry is limited to investigation of “any action of a health care provider...if the action is, or appears to the Commissioner to be, in breach of the Code of Patients’ Rights”. The focus is on the possibility of substandard care. In an important ruling during Robyn Stent’s Canterbury Health Inquiry,9 the High Court in the Nicholls case upheld the Commissioner’s jurisdiction to investigate systemic issues at the organisational level, so long as the investigation relates to alleged breaches of the Code.
Commissions of inquiry or “special health inquiries” appointed under the New Zealand Public Health and Disability (NZPHD) Act may inquire into (a) funding or provision of health services; (b) management of any publicly owned health or disability organisation; or (c) a complaint or matter arising out of the administration of the NZPHD Act.
Note the important differences between these external inquiry bodies. The Coroners and HDC are permanent bodies whose core business includes the conduct of inquiries, whereas a Commission of inquiry or a “special health inquiry” is exactly that: a one-off, special event. It is no surprise that Commissions of inquiry are often headed by judges. A judge is called upon to hear evidence and reach conclusions about every aspect of life, so no special expertise (beyond legal acumen and wisdom) is called for. Coroners are judicial officers. They do, naturally, develop expertise in end-of-life issues. But they are not part of the health sector.
The HDC, in contrast, is not a judge and is not even required to be a lawyer. No doubt there are pros and cons to the appointment of lawyer to this key role of a statutory decision-maker inquiring into health care. The appointee is required by statute to bring knowledge of the health care system and of the needs of health consumers to the role.12
HDC is, I think, very much seen as part of the health system, rather than simply part of the legal system. This also has important implications for the many inquiries that HDC undertakes into health care.
One final distinction relates to the form of the inquiry. Coroner’s inquiries and Commissions of inquiry are usually referred to as public inquiries, because they hold public hearings and the evidence is publicly available. HDC inquiries may be conducted in public or private, but to date every inquiry has been held in private—even though the terms of reference of an HDC inquiry, and its findings and recommendations, may be publicly released and highly publicised. This distinction between public and private hearings may be important in seeking to achieve learning without lynching.
So much for the landscape of health inquiries in New Zealand. I want to look at some specific inquiries. No discussion of health inquiries in New Zealand would be complete without acknowledging the pivotal role of the Cartwright Inquiry. It is timely to do so.
August 2008 marked 20 years since Judge Silvia Cartwright delivered her Report of the Cervical Cancer Inquiry, having been appointed as a Committee to inquire into “allegations concerning the treatment of cervical cancer at National Women’s Hospital and into certain other related matters”.13
It took just 10 days for the Government to announce a judicial inquiry in June 1987, after Metro published the article by Sandra Coney and Phillida Bunkle entitled An Unfortunate Experiment at National Women’s Hospital, which told the story of “Ruth” (who later revealed herself as Clare Matheson), one of many women with carcinoma in situ left untreated by Associate Professor Herb Green as part of a study to see whether doing nothing was as effective as standard treatment (cone biopsy, hysterectomy, etc) in preventing invasive cancer.
The very public inquiry, and the Report that followed, led to a seismic shift in the patient–doctor relationship in New Zealand. Judge Cartwright recommended that patients’ rights (in particular, the right to informed consent) be enshrined in legislation and enforceable by a complaint system overseen by a Health Commissioner; an overhaul of the medical disciplinary system; independent patient advocates; and a rigorous system of ethical review. All this came to pass in the years that followed, including the appointment of the first Commissioner in 1994, and the enactment of the Code of Patients’ Rights in 1996.
It is interesting to speculate whether these changes would have occurred without a public inquiry, and the legal process—notably cross-examination of witnesses by lawyers funded by legal aid—that tested the evidence. The simple answer is “no”.
As Silvia Cartwright noted in a recent conference paper, “[t]his was a drama unfolding in the nation’s living rooms.” Dame Silvia also made another interesting comment, “[It was] a drama in which there were goodies and baddies” (emphasis added).14 It reflects the natural human tendency to look for a scapegoat whenever a great disaster is uncovered. The urge to lay blame runs deep.
Learning, catharsis, reassurance, and accountability? All of these were achieved to varying degrees by the Cartwright Inquiry and its aftermath. But the learning has been contested. The revisionists, most recently in the guise of University of Auckland historian Lynda Bryder, continue to argue that Judge Cartwright got it wrong; that the women who were part of Green’s study had the same outcomes in terms of invasive cancer as those treated before or after.
As Charlotte Paul has commented, “Not a scrap of empirical evidence has been published by the revisionists.”15 Indeed, a new follow-up study of the National Women’s patients (led by Margaret McCredie, with Charlotte Paul, David Skegg and others) confirms the poor outcomes for the untreated women.16
What this tells us is that if the stakes are high enough, the learning from an inquiry will be hotly contested. And the stakes were very high indeed in the Cartwright Inquiry. Women had died and suffered from “the unfortunate experiment”. Although the inquiry was an inquisitorial process, it felt like a trial: of Drs Green and Bonham, of National Women’s Hospital and the University of Auckland, and even of the medical profession.
How cathartic the inquiry was remains contested territory. Clare Matheson says in her personal reflections that it has been a “never-ending story”,17 but I think she would acknowledge the importance of being able to tell her story publicly and have her concerns vindicated. Some colleagues of Green and Bonham continue to refer to the inquiry as a “witch-hunt”, which “did a huge injustice in totally discrediting” them.18 For them, it was certainly a public humiliation—even though the formal accountability processes (including the Medical Council disciplinary process finding Professor Bonham guilty of disgraceful conduct) followed and were separate from the Inquiry.
But for those not directly involved in the inquiry, the Report and the implementation of most of its recommendations were cathartic. Stephen Hilgartner, writing in the aftermath of Hurricane Katrina, has commented that “[p]ublic inquiries...offer a ritualised process for collectively ‘moving on’ ”.19 Yet Hilgartner also notes that inquiries “do not have a guaranteed capacity to reassure”.
As shown by the Gisborne Cervical Cancer Inquiry in 2000, and the 2001 report from the Committee of Inquiry headed by Ailsa Duffy QC, there was still “unfinished business” relating to the national cervical cancer screening programme.20 The Duffy Report concluded that the under-reporting of cervical smear abnormalities by Dr Michael Bottrill in Gisborne was not an isolated case, but evidence of systemic flaws in the national programme due to lack of rigorous audit and quality assurance. The Inquiry’s 46 recommendations led to changes in the legislative basis of the National Cervical Screening Register and in the operation of ethics committees.
The learning from the Gisborne Inquiry did not come without its own costs—it involved millions of dollars, months of argument and counter argument between lawyers, and mountains of paper and legal documents. This is one reason why governments are increasingly wary of embarking on large-scale public inquiries.
Recent legislation in New Zealand and the United Kingdom seeks to control the scope and cost of inquiries and regulate their form. Under the New Zealand Public Health and Disability Act, for “special health inquiries”, the Minister is required to give “procedural instructions” to the inquiry board covering the nature of the inquiry (whether inquisitorial or adversarial), limits on the questioning of witnesses by parties and their lawyers (if an inquisitorial hearing), and directions that the inquiry be conducted efficiently, with due expedition, procedural flexibility, and minimal formality.21
Inquiry hearings are to be held in public and evidence is to be publicly available, unless the inquiry board rules otherwise having regard to “the interests of any person and to the public interest”.22
I want to turn now to what have become the most common inquiries into health care in New Zealand: inquiries by the Health and Disability Commissioner. HDC undertakes around 100 investigations a year, but our inquiries into matters of major public concern, initiated on the Commissioner’s own initiative, with the terms of reference publicly released and the publication of a final report, have probably had the most impact. There have been several major Commissioner-initiated inquiries into DHBs over the past decade, starting with Robyn Stent’s Canterbury Health Inquiry in 1998, and continuing through my own inquiries into Gisborne Hospital,23 Southland DHB,24 and this year Whanganui DHB.25
Each of these inquiries has focussed on hospital and DHB systems, and made recommendations for improvements. As Commissioner, I have quite consciously sought to bring a systems focus to my inquiry analysis—reflected in the motto adopted by HDC, “Learning, not lynching, Resolution, not retribution” (phrases that came to me one day in 2001 when I was mowing the lawns). Others will judge how successful we have been. NZMA chair John Adams said of our Gisborne Hospital report, “HDC looked beyond the culpability of individual practitioners to the system.”26
Alan Merry and Mary Seddon writing in the New Zealand Medical Journal in 2006 commended HDC on “a world-leading focus on addressing aspects of the system which contribute to patient harm, rather than only seeking to identify individual scapegoats when things go wrong”.27
But we have our critics, and they have been fierce. Unsurprisingly, as in the aftermath of the Cartwright Inquiry, they have not all been disinterested. Colleagues and the Southland DHB chair rallied behind the psychiatrist found in breach in HDC’s Southland Inquiry, and demanded a formal apology when the disciplinary tribunal found no basis for discipline. I did not apologise; how could I, when I had given my honest assessment of a mass of evidence, and had been charged with a different question: whether psychiatric patient Mark Burton received mental health services of an appropriate standard.
Challenges have also come from professional leaders. Last year, the President of the New Zealand Medical Association (NZMA), in a Presidential Address entitled Loyal to the Profession of Medicine and Just and Generous to its Members28 (the title gave a hint of what was to come), fiercely criticised an HDC decision involving Wellington Hospital.29 The case involved Mr A, a 50-year-old patient with a chest infection admitted to hospital in September 2004, and the care he received over the 40 hours prior to his death. In a decision released publicly in April 2007, I reported on serious failings on the part of individual nursing and medical staff and the hospital system: failing to respond to signs of deterioration (not reading a chest X-ray until it was too late), and a lack of compassion for the dying patient and a lack of candour with his family and the Coroner after his death.
Let me give you a sample of the NZMA criticisms. My experts had engaged in “self-deception”; they were guilty of hindsight bias; their advice had been “clearly influenced by the weight [they] put on the family’s anger and the fact that the patient eventually died”; the report did not identify the true cause of death; they had proposed untried “system fixes” (the use of medical emergency teams), thereby demonstrating “enthusiastic, but potentially arrogant...expertise or ignorance”.
The Commissioner himself was guilty of a media “launch”—presumably a reference to my three-page media statement entitled A tragic case at Wellington Hospital, highlighting the lessons for other DHBs.30 HDC was also accused of “broaden[ing] the range of targets of blame” to include managers as well as staff. The President of NZMA concluded by calling on the profession to “alert others to the path of arrogance of ignorance”.
I take these criticisms seriously, and I want to respond to them, because they go to the heart of my discussion of the nature of inquiries into health care, and whether they amount to learning or lynching. Let me first deal with the smear of the “arrogance of ignorance”. I went back and read Frank Ingelfinger’s Harvard lecture on “Arrogance”, delivered in 1977 but not published until 1980, after his death.31
Interestingly, Ingelfinger reserves his most trenchant criticism for what he calls “the brand of arrogance subsumed under lack of empathy”, and cites as “the most flagrant example” the labelling of the patient as “non-compliant”. This is the true arrogance in the case of Mr A, who was treated without empathy and blamed for wanting to leave his hospital bed for a smoke. To focus on the exact cause of Mr A’s death (a matter that will fall to the Coroner to determine) is to miss completely the key learning from the case.
It is, of course, valid to worry about hindsight bias (that is, the fact that the inquiry body and its advisors look through “the retrospectoscope”) and outcome bias (the reviewers’ knowledge of the patient’s death). But these concerns do not justify a sideswipe against inquiries; they highlight the need for care in inquiring. Here we see at play a fundamental difference between medicine and law.
Medicine is essentially concerned with the prognosis for the patient—looking at treatment options having established a diagnosis. Law, in particular a legal inquiry, is necessarily retrospective. It is impossible to hold an inquiry in advance. Of necessity, the inquirer looks back at events that have already occurred. HDC, in undertaking an inquiry, asks what health care the patient should have received. That is a normative question, rather than a moralistic question. Nor is it totally irrelevant to note that the patient died. The fact that there was a bad outcome, and that a complaint resulted, presents an opportunity to learn from what happened—in the same way that a mortality review does.
What are the safeguards against “ignorant”, hindsight-biased expert advice? There are several. I inherited a system where expert advisors were not named in HDC reports, the basis of their appointment was unclear, and their advice was not always set out in full. In my view, fairness and confidence in the HDC process demanded that advisors be nominated by professional colleges, that they be named, and that their full advice be available to the providers under investigation, and (upon publication of the final report) to the profession and the public. Those checks are not a guarantee of wise advice, but they significantly mitigate the risk of ill-founded advice.
The sanction of professional critique of an expert’s published advice is an important one. And in the rare cases where there has been disquiet from a specialty group about the advice relied upon (for example, because it is seen to be “gold standard”), I have been willing to ask a College to undertake its own review and provide me with feedback. It has seldom proved necessary.
It is also important to note that advice is simply that: advice. We might debate the merits of a non-clinically qualified inquirer not relying upon the advice of suitably qualified expert advisors. I have signalled to health professionals that in determining whether appropriate care was provided, HDC will scrutinise whether custom amounted to care. But of course in matters of assessment, diagnosis, and treatment, expert opinion will carry significant weight. That does not mean that an expert’s suggested solution will automatically be endorsed.
Although HDC’s advisor in the Wellington Hospital case flagged the need for rapid response systems to respond to physiologically unstable patients, my actual recommendation to Capital and Coast DHB was to “review its systems of care for physiologically unstable patients” in light of my expert’s advice. I agree that inquiry recommendations should be evidence-based, although in seeking to improve patient safety we cannot always wait for randomised controlled trials.
The denigration of experts is not a new phenomenon. It continues to this day—I recently learnt that a specialist under investigation by HDC had sent a threatening email to the expert who had provided preliminary advice on a file, and to his Clinical Director. Charlotte Paul and Linda Holloway discussed this point in the aftermath of the Cartwright Inquiry. Writing in the New Zealand Medical Journal in 1990, they asked:33
“Is anyone involved in a critical assessment of a colleague’s work to be regarded as a proper target for...denigration? Only by withstanding such attacks and refusing to become cynical can we assist society in finding better ways to deal with error in medicine.”
Denigration of an inquiry body is not confined to health professional critics. At the risk of giving my critics an idea, let me tell you what happened across the Tasman. In December 2003 the New South Wales Health Minister sacked the Health Care Complaints Commissioner, Amanda Adrian. According to the Minister, the Commissioner’s findings in her Campbelltown and Camden Hospitals inquiry report “did not go far enough” and “failed to hold a single person accountable”.
The Commissioner’s 374-page inquiry report examined 47 clinical incidents at Campbelltown and Camden Hospitals (southwest of Sydney) between 1999 and 2003, following a complaint by whistle-blowing nurses.34 It revealed disturbing patterns of inadequate care and treatment at the two hospitals, and at least 17 deaths were attributed to substandard care. The report made detailed recommendations to address the multiple systemic problems. But not one individual doctor or nurse was named or blamed for the litany of tragedies—although the possibility of disciplinary action remained open.
For that, the Health Minister dismissed the Commissioner and launched a special commission of inquiry headed by a leading lawyer, to re-investigate patient care at the two hospitals. A Coroner was also asked to examine the 19 deaths. Two doctors were suspended and another nine faced investigation into their performance. The Health Minister told the media: “The report does detail in great length instances of clinical failure, deficiencies in management systems, and the failure to ensure appropriate supervision. But...[it] simply doesn’t go far enough in terms of finding anyone accountable for these failures.”35
Any Minister of Health oversees a complex and politically charged portfolio. The New South Wales (NSW) Minister found himself caught up in a media and political storm about patient deaths at local hospitals. The heat was turned up once the Commissioner’s provisional report was leaked.
The whistle-blowing nurses considered that the report did not go far enough, and were given plenty of airtime on Sydney radio. The Opposition seized the opportunity to accuse the Government of mishandling the health portfolio. Meanwhile, a parliamentary committee had turned its spotlight on the Commission, highlighting investigation delays and a backlog of cases.36 The Minister’s media comments in sacking the Commissioner—“Today is about accountability, about having a clear and transparent process...to provide closure and justice”—say more about politics than health care.37
Could it happen here? I think not. The Health and Disability Commissioner is appointed by the Governor-General, and can be removed (by the Governor-General on the advice of the responsible Minister given after consultation with the Attorney-General) only for “misconduct”, “inability to perform the functions of office”, “neglect of duty”, or breach of duty (depending on the seriousness of the breach).38
Like any public agency, Health Commissioners must be accountable for their performance, but they must also be able to undertake health inquiries without fear or favour, independent of the Government of the day. I am happy to report that I have always been able to do so.
I want to return to the tension between learning and accountability. Some inquiries into health care are expressly enjoined not to assign fault or blame. A Coroner’s inquest is a good example. Its purpose is not to determine fault although, in identifying the cause and circumstances of the death, and making comments or recommendations so that lessons may be learnt, it is sometimes inevitable that fault is attributed to a party.
But HDC is required to make findings about whether an individual provider or an organisation breached the patient’s rights. We must walk a delicate balance between holding systems to account, but attributing individual responsibility where professionals fail to fulfil their duty of care when working within a flawed system. We do so in an often acrimonious environment, where health professionals, aided and abetted by lawyers, bridle at any proposed criticism of their care.
Far more often, we single out DHBs and other organisational providers as being in breach of the Code, and acknowledge the impossible situation faced by individual medical staff. The combination of HDC’s approach to finding doctors in breach of the Code, and the Medical Council’s use of competence reviews to help the poorly performing practitioner, has led to a dramatic decline in discipline.
A just culture does not mean that we should turn a blind eye to individual failings. In the New Zealand health inquiry system, the Commissioner is required to attribute responsibility in determining whether the Code has been breached. It is a key aspect of our modern system on health professional accountability. Stephen Sedley has noted that “no responsible inquiry can be silent about professional misjudgements if it uncovers them”.39
Furthermore, I do not believe that accountability can be equated with lynching. Indeed, I recall the American-trained psychiatrist who complained to HDC about the lack of care by a nurse found in breach of the Code for failing to undertake regular checks on a mental health patient in seclusion, who died overnight.40 The psychiatrist took umbrage at my use of the phrase “learning, not lynching”, when I declined to refer the nurse for discipline. He was right to do so.
Research from Marie Bismark and colleagues shows that the majority of complainants are motivated to prevent the same thing happening to someone else.41 Only a tiny minority of complainants seek punishment, yet a significant proportion of doctors interpret a complaint as an assault on their person, and perceive themselves as victims of retribution.
Curiously, when doctors become aggrieved patients or family members themselves they are often very unforgiving of their peers’ mistakes and unsympathetic towards HDC’s rehabilitative approach. As an aside, in 2005, a senior doctor wrote to me that “[l]earning and resolution are noble sentiments if we are talking about milk products at Fonterra. But we are in the death, disease, and disability industry...so while learning and resolution are under way...deaths can occur.”42
We do need to minimise the collateral damage that health inquiries can cause. To quote Sedley again, “For the individuals under the spotlight public inquiries are a disease, not a cure.”43 That, of course, is not the same as lynching, which is characterised by a lack of fair process and the substitution of mob rule. But we do need to recognise what I have called the “toxic effects” of complaints and inquiries.44
Whatever the good intentions of complainants and inquiry bodies, it may sometimes feel like a modern-day lynching if an individual provider is publicly revealed as the Dr X who is criticised (but not named) in a publicly released inquiry report. Our Bill of Rights enshrines freedom of expression as a fundamental right45 (it even permits nude fishing on the Kapiti coast!), and parties are free to tell their story to the media, but we are right to worry about the long-term effects of such publicity.
After a major public consultation earlier this year, HDC adopted a policy of naming DHBs, hospitals, and rest homes whose systems are found in breach of the Code, unless it would not be in the public interest to do so; but individuals found in breach will continue to be named by HDC only in exceptional cases where public safety or flagrant misconduct requires it.46 The recent publication, on an Internet blogspot, PsychwatchNZ,47 of allegations about a named mental health nurse who had not even been subject to a formal inquiry, let alone an adverse finding, was a sad development.
I will continue to caution journalists who check with me about the risk of premature publicity before an inquiry is complete. This is a particular risk if an inquiry is being conducted in private, pending public release of a final report. One legacy of the Privy Council’s overturning of Justice Peter Mahon’s Erebus Inquiry Report48 (for breach of natural justice in making the “litany of lies” comment that had not been put to Air New Zealand) is the requirement that proposed adverse comment be released to affected persons, with an opportunity to respond.49 This can have its own adverse effects. Complainants may be aggrieved if the proposed findings are not “hard-hitting enough” or will be watered down as a result of submissions by adversely affected parties on provisional findings.
If a provisional report is leaked, the media can be used (as it was during the Campbelltown and Camden inquiry) in a pre-emptive strike, to build public pressure for more punitive inquiry findings.
As Onora O’Neill demonstrated so compellingly in her 2002 Reith lectures, trust is fragile.50 Health professionals and health care delivery systems are also fragile, and the price of the full glare of publicity during an inquiry process (when grieving families and their lawyers may make sensationalist allegations that garner far more publicity than the eventual inquiry findings) may be irreparable damage to reputation, and systems that close ranks in the future and become more, not less, susceptible to failure.
If a primary purpose of an inquiry is to improve public safety in the future, there may be a case for suppression of the names of individual clinicians at least until an inquiry reports its findings, or for private hearings followed by a public report.
Let me conclude with a few observations about learning from inquiries, and the implementation of inquiry recommendations. Kieran Walshe has examined the use of inquiries in the United Kingdom’s National Health Service (NHS).51 In a 2003 report, he notes that inquiry reports often gather dust, their recommendations are frequently not implemented, and the themes of organisational failure are recurrent.52
Recent research from Joanne Travaglia and Jeffrey Braithwaite of the University of New South Wales notes that patient safety inquiries across the world consistently identify the same problems: health care below promulgated standards; lack of quality-monitoring processes; patients, family members, and concerned staff being ignored and excluded; whistle-blowers being vilified; and persistent deficiencies in teamwork, systems, and communication.53 A list to which one might add shortage of staff and other resource constraints.
I think we are right to worry about indiscriminate public inquiries of the sort that have become fashionable in NSW. In my view, at least if a country has a permanent health inquiry body, one-off Ministerial inquiries should be reserved for issues giving rise to widespread public concern and loss of public confidence. The events that led to the Cartwright and Gisborne Cervical Cancer Screening Inquiries warranted such intervention. Conversely, the Tauranga Hospitals Inquiry in 2005 is a good example of a Minister resisting calls for a government-appointed inquiry, and letting HDC get on with the job.54
We need to learn from our major health inquiries. As Travaglia writes, “Our analysis of multiple inquiries teaches us lessons from history that need to be heeded...Those who do not learn the lessons are compelled to repeat them, at great cost to patients.”55 For good reason, Ian Kennedy entitled his Report of the Public Inquiry into children’s heart surgery at the Bristol Royal Infirmary, Learning from Bristol.56
Of course, if the lessons are to be worth heeding, inquiries must be rigorous, and their recommendations should be sound, evidence-based, and (if they are to be applied elsewhere) able to be generalised across the sector. The epidemiology of inquiries is doubtless worthy of study; so, too, is the evidence that implementation of inquiry recommendations do lead to quality improvement.
If clinicians and organisations are to learn from inquiries, the reports need to be well publicised and circulated, and there needs to be time for quality. We also need effective mechanisms to ensure follow-up of recommendations. This is not a problem for HDC. We can and do monitor the implementation of our recommendations, and we report to Parliament on the results. But it can be problematic for a government-appointed inquiry, whose existence ceases after tabling its report.
One possibility is for the inquiry to charge an official agency such as a Ministry of Health with the task of monitoring and reporting publicly, at specified intervals (for example, every 6 months) on progress in implementing recommendations. But from a public perspective it has its drawbacks, as the Ministry may not be seen as independent enough.
After the Gisborne Cervical Screening Inquiry both health officials and an independent, overseas pathologist were charged with making regular reports on progress on the recommendations. But after a couple of reports, the overseas pathologist was unavailable to continue the job. The public were left to rely on regular updates from the very Ministry that had been found wanting in the inquiry report.
In this instance the media played an important role in following up progress—alerting the public to time slippages, and holding public officials to account. Another approach could be to provide for an independent statutory agency, like the National Audit Office in the United Kingdom, to follow up and report on the implementation of inquiry recommendations.
Reassurance for communities that improvements have been made is also important, so long as it is justified. We care about our hospitals, especially in our provincial centres like Gisborne, Invercargill, and Wanganui, and we want to know that problems are being fixed. With its unusual mix of inquiry and public watchdog roles, HDC can help provide some independent assurance, once an inquiry has established the facts and determined accountability.
We have a duty to inquire. The issues considered through inquiries form the visible tip of an iceberg of serious, preventable adverse events. And, like all icebergs, the most serious threat lies unseen below the waterline. Major failures are difficult to expose and investigate, and chance plays a large part. Often, problems will be well recognised by key individuals within the organisation, though even high levels of tacit knowledge may not lead to action, particularly within a dysfunctional organisation.
Would-be whistle-blowers may be deterred by the lack of appropriate protection and professional support. The result may be immense harm to patients, health professionals, and health care organisations.
We cannot simply rely on patients, journalists, and whistle-blowers to alert us to major failures in health care. We cannot turn a blind eye to the harm we see around us. We need a culture of inquiry that encourages health professionals to discuss their concerns, mechanisms that enable them to share, learn and implement changes, and processes that support more informed scrutiny of performance and quality by the public and media. If we fail to detect, investigate, and learn from major failures in health care, important opportunities for improvement are likely to be missed, and the chances are surely higher that similar failures will happen again.57
As Commissioner, I will continue to encourage the health professions to undertake their own inquiries, for I am convinced that the best lessons are learnt at home. But there will always be a place for HDC to undertake inquiries where external scrutiny is necessary. We will continue to take seriously our responsibility to find and share the learning from inquiries. We owe this to the complainants who seek our help, to the providers who invest much time and worry in our inquiries, and to the broader community, which places its faith in the Commissioner as a public watchdog.
We will ensure that our processes are fair, and will hold fast to our belief that retribution is futile if our aim is to improve health care.
Competing interests: None known.
Author information: Ron Paterson, Health and Disability Commissioner, Auckland
Acknowledgements: I am grateful to Joanna Manning and Charlotte Paul for comments on earlier drafts, and to Elizabeth Browne for research assistance.
Correspondence: Ron Paterson, Health and Disability Commissioner, PO Box 1791, Auckland 1140, New Zealand. Email: email@example.com.
References and endnotes:
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