 
|
|
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Journal of the New Zealand Medical Association,
28-November-2008, Vol 121 No 1286
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Inquiries into health care: learning or lynching?
Ron Paterson
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 inquire?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?”
What kind of inquiries into health care?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.
Inquiry bodiesIndependent 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.
Reflections on the Cartwright InquirySo 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
HDC inquiriesI 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.
HDC’s Wellington Hospital InquiryChallenges 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.”
Sack the CommissionerDenigration 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.
Learning or lynching?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
Minimising the toxic effectsWe 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.
Learning from inquiriesLet 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.
ConclusionWe 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: rpaterson@hdc.org.nz.
References and endnotes:
|
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | Current
issue | Search journal |
Archived issues | Classifieds
| Hotline (free ads) Subscribe | Contribute | Advertise | Contact Us | Copyright | Other Journals |
|