The inner workings of HDC - legal & evidential issues - Health and ...

The inner workings of HDC: legal
and evidential issues
HDC Medico-Legal Conference
24 March 2010
Nicola Sladden, Chief Legal Advisor
Health and Disability Commissioner

Quis custodiet ipsos custodes?
Who will watch the watchers themselves?

Avenues of review
• Internal review
• Ombudsman review
• Judicial review
• No right of appeal

Internal review – high threshold

Internal review – two pronged test
• Has the HDC made an error –
either procedural or substantive?
• What is the significance of the
error – does the overall justice
require the matter to be reopened?

Case A – The complaint
• A general surgeon diagnosed a large pre
cancerous lesion and performed surgery
to remove it.
• The patient had ongoing difficulties and
further surgery was required.

Case A – The investigation
• The Commissioner commenced an
investigation into the appropriateness of the
care provided by Dr B.
• Independent expert advice was provided by a
general surgeon — operation was inadequate.
• HDC concluded there were deficiencies in the
surgeon’s management — breached Right
4(1).

Case A – The subsequent challenge
• Surgeon disagreed with the findings
• Accepted process was fair
• Provided additional information
• Operation note and histology report from
subsequent surgery — no evidence of residual
cancer
• Surgeon submitted expert advice that the
surgery was adequate.

Case A – The internal review
• Compelling new information?
• Positive outcome does not excuse poor care (in
the same way a poor outcome is not inculpatory).
• Expert gives a tentative opinion on the adequacy
of the surgery in light of the final histology.
• No basis for reopening investigation.
―And often times excusing of a fault doth make the
fault the worse by the excuse.‖
Shakespeare, King John

Ombudsman review
Review de novo or process review?
• Unnecessary duplication
• Lack of expertise
• No right of appeal
Role of the Ombudsman is to examine
the fairness and effectiveness of the
process.

Case B – Key facts
• The patient had colon cancer and
extensive secondary cancers in the liver.
• A bariatric and liver surgeon
recommended Selective Internal
Radiation Therapy (SIRT) and Hepatic
Artery Chemotherapy (HAC).
• Cost of treatment – approx $40 000 –
self funded.

Case B – Key facts
Treatments delivered
through a surgically
implanted port into the
hepatic artery which
serves the liver.

Case B – Key facts
• The patient received his first SIRT
treatment in November 2007.
• By June 2008, the patient’s disease was
progressing.
• Repeat SIRT treatment was discussed.
• Mr A was concerned about costs.
• Agreed to proceed in July 2008.

Case B – Key facts
• Initial testing revealed the port was not
working.
• An alternative procedure was urgently
discussed and agreed by Mr A.
• Urgency arose because the radioactive
material decayed quickly.
• The alternative process would cost an
addition $5–7,000.

Case B – Key facts
• A few days after the repeat treatment, Mr
A expressed concern about the additional
cost.
• He said he was unaware of the potential
for the port to fail and the medical and
financial consequences of it.
• After a short respite, Mr A’s condition
deteriorated and he died in February 2009.

Case B – HDC investigation
• 25–33% chance overall of failure of port.
• Independent expert on appropriateness of
care and adequacy of information provided:
―It could also be said that it would have been
better if the information booklet had been more
specific on the possibility of device malfunction.
This could be added for future editions. Doctors
perhaps tend to accept as given the fact that
any plastic tube may block, fall out or become
infected but patients may not be aware of this.‖

Case B – HDC findings
Dr B — breach — Right 6(1)(b)
• There was a risk of failure of the port.
• Dr B should have discussed the possibility,
and cost implications.
• This was information that a reasonable
person in Mr A’s circumstances would
expect to receive.

Case B – HDC recommendations
• Amend his patient information booklet.
• Pay Mrs A $5,000 towards the
additional costs following the failure of
the port.
• An anonymised copy of report be placed
on website for education purposes.

Case B – Judicial review
• The surgeon challenged the decision on the
grounds of bias, irrationality,
unreasonableness, unfairness and breach of
statutory duty.
• HDC submitted that the challenge ―was
dressed in the clothes of judicial review‖ but
was in substance an appeal against the
Commissioner’s decision.
• Standard of review applied to decision?

Case B – Judicial review
• Simple straightforward complaint system.
• Prescribed process has a high level of ―fairness‖
attached.
• Commissioner has high level of expertise in the
field.
• Commissioner’s opinion does not directly affect
the legal rights or liabilities of the provider.
• It is an opinion albeit well informed but where
there may be genuine scope for disagreement.

Case B – Standard of review
• Tenor of legislation — ―hard‖ look judicial
review is not appropriate.
– Was there a rational factual basis for the
Commissioner’s conclusion?
– Was the conclusion open to the Commissioner
on the facts?
‣ If so, the grounds of the review could not
succeed. Not a fact based appeal.

Case B – No grounds for review
• There was information on which the
Commissioner could logically conclude that
the patient should have been told of the
potential failure of the port and additional cost
for the alternative method.
• The Commissioner’s opinion could not be
successfully challenged.

Case B – Publicity
• Dr B sought an order prohibiting publication of the
anonymised opinion because some medical
practitioners at least would identify Dr A.
• ―Such is life in New Zealand‖ and is not a reason
to compromise the important educative function
of those opinions.
• Name suppression not granted – open justice –
no special circumstances.
• Stubbs v Health and Disability Commissioner
Young J, High Court Wellington, CIV 2009-485-2146, 8 February 2010.

Conclusion
• There is no right of appeal from the
Commissioner’s decision.
• The Ombudsmen and Court showed a high
degree of deference to the expertise and
specialist knowledge of the Commissioner.
• An opinion that a provider has breached the
Code is something ―the Commissioner is
well if not uniquely qualified to express‖.

So — who is watching the
watchdog?
• Public watchdogs are subject to considerable
public scrutiny.
• There are safeguards to ensure fairness.
• So how does HDC measure up as a watchdog ?

www.hdc.org.nz