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| Journal of the New Zealand Medical Association,
10-September-2004, Vol 117 No 1201
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Reform of ACC Medical Misadventure
Jonathan Coates, Kate Smith
On 2 August 2004, the Injury Prevention, Rehabilitation, and
Compensation Amendment Bill (No. 3) (the Bill) was tabled in Parliament. This
Bill is the culmination of the long-running
Review of ACC Medical Misadventure
(Review), undertaken jointly by New Zealand’s Accident Compensation
Corporation (Corporation) and the Department of Labour. The proposed amendments
have the potential to be the most significant legislative progression yet seen
towards the practical implementation of the system approach theory of quality
improvement, which health quality experts argue will assist in improving the
quality of health services.1,2
This article does not seek to provide a comprehensive
analysis of all aspects of the proposed amendments contained in the Bill.
Instead, it considers whether the proposed amendments will achieve the goal of
the Review—overcoming the problems identified with the current medical
misadventure criteria.
Overall, we support the proposed amendments and the new
criteria for establishing cover for
‘personal injury caused by
treatment’, primarily because the Corporation will no longer be
required to make findings of fault in order to establish that a claimant is
entitled to cover. Despite this support, we consider that the reporting
obligations (that it is proposed will be imposed on the Corporation under the
new regime) have the potential to undermine much of the good that the
substantive amendments achieve.
How the Corporation interprets the reporting provision will
be critical to the success of the new regime. We would also like to see express
obligations on the Corporation to analyse information collected on medical
injuries and to disseminate that information back into the health sector.
The Review and the proposed amendmentsKey findings of the Review were that
the current medical misadventure criteria in the Injury Prevention,
Rehabilitation and Compensation Act 2001 are considered by both claimants and
health professionals to be unfair, confusing, and arbitrary—and that
agencies other than the Corporation should be responsible for addressing
patients’ concerns about their health care, and for holding individual
health professionals to account.3
The Review found that the requirement to establish fault
impacted on health professionals by creating an overly blaming culture (rather
than a culture of learning from mistakes)—by focusing too much on the
actions of individual health professionals, and by making health professionals
uneasy about participating in the medical misadventure claims process for fear
of the repercussions, particularly from inter-agency
reporting.4
The Review found that the consequences (which flowed onto
patients from such impacts on health professionals) included there being less
focus on the patient’s injury, less focus on the prevention of similar
injuries, confusion over the Corporation’s role, and opportunities to
learn (and therefore improve) safety being
limited.4
The Bill proposes replacing the existing definition of
‘medical misadventure’, and
the associated ‘medical
error’ and ‘medical
mishap’ criteria, with the concept of
‘personal injury caused by
treatment’ or ‘treatment
injury’.5 Under the new
provisions, subject to certain exceptions, claimants will have cover for any
personal injury that they suffer while receiving treatment from, or at the
direction of, one or more registered health
professionals.5 It is also proposed that (in
recognition of the broad range of activities and processes that form part of the
treatment process) the definition of
‘treatment’ be extended for
the purposes of determining whether a treatment injury has occurred.
Cover for ‘treatment
injury’ will not extend to personal injuries that are attributable
to a claimant’s underlying health condition, or are an anticipated part,
or consequence, of the treatment. There will be no cover where a
claimant’s personal injury is solely attributable to resource allocation
decisions.5 As under the existing regime, the
fact that a claimant’s treatment did not achieve a desired result will
not, of itself, constitute ‘treatment
injury’.
Unlike ‘medical
mishap’ under the current medical misadventure provisions, it is
proposed that there will be no ‘seriousness’ criteria. This opens
the door for minor injuries to be covered.
While the Corporation will not be required to attribute
fault under the new regime, the Corporation will be obliged to inform claimants
about the role that the Health and Disability Commissioner plays in
investigating complaints.6
We support the proposed new criteria for establishing cover
for treatment injury, and consider it to be a significant improvement on the
existing medical error and medical mishap criteria—due mainly to the
removal of the requirement to establish fault. The
‘treatment injury’ criteria
is more closely aligned to the rest of the accident compensation scheme in which
the ‘fault principle’ plays no part in the claims process.
It is hoped that the new regime will encourage health
practitioners to co-operate and participate in the claims process, support
claimants through the claims process, and provide the Corporation with the
medical reports and advice that it requires to make decisions on claims. The
information that the Corporation obtains for the purposes of assessing
‘treatment injury’ claims
will also provide a wealth of information about medical injuries that can be
analysed and disseminated back into the health sector, thus supporting and
acting as a catalyst for quality/learning initiatives in the health sector. The
importance of gathering, analysing and learning from data on adverse medical
events is well recognised by quality health experts.
The Corporation’s obligation to report to other agenciesThe most contentious issue during
the Review was the Corporation’s use of information obtained during the
claims process.7 Following the Review, it was
accepted that the Corporation’s current reporting requirements encourage
defensive practice, and do not support an environment in which practitioners are
encouraged to disclose things that go wrong as a means of learning from (and
preventing) further injury.7
However, there was also a view (identified during the
Review) that cross-agency sharing of information is necessary to ensure patient
safety.8 This latter viewpoint ultimately
persuaded the Government that the Corporation should be required to share
information in certain circumstances under the new regime. Accordingly, the Bill
proposes that where the Corporation believes, from the information that it has
obtained during the claims process, that there is
‘a risk of harm to the
public’, the Corporation
‘must report the risk, and any other
relevant information, to the person or authority responsible for patient safety
in relation to the treatment that caused the personal
injury’.9 In practical terms, this
‘person or authority’ is
most likely to be the health professional’s employer and/or the relevant
registration authority.
There are obvious similarities between the reporting
obligations that will be imposed on the Corporation under the new regime and the
reporting obligations already imposed on registration authorities under the
Health Practitioners Competence Assurance Act 2003 and the (amended) Health and
Disability Commissioner Act 1994. In our opinion, the way that the Corporation
interprets its obligation to report on the basis of
‘a risk of harm to the
public’ will be critical to the success of the new regime in terms
of moving towards a claims process that has the full support and co-operation of
health professionals and subsequently allows the Corporation to achieve its
over-riding goal of minimising (in this context medical) injuries.
The Corporation will be required to interpret the statutory
reporting test, including defining a threshold at which it will report on the
basis of a ‘risk of harm to the
public’. This is likely to be a difficult balancing exercise. If
the threshold is set too high, the Corporation will be at risk of being
criticised for breaching its statutory obligation to report. On the other hand,
if the threshold is set too low, health practitioners may remain reluctant to
participate in the claims process and provide the information that the
Corporation requires to make decisions on claims, because of the fear that the
Corporation will report that information to other persons or authorities.
We consider that ACC should apply a high threshold when
interpreting the ‘may pose a risk of
harm’ test. Alternatively, consideration could be given to changing
the statutory reporting threshold to one that requires a
serious risk of
harm. Either option would be consistent with the conclusions of the Review that
ACC’s role is not accountability, and that the fear of inter-agency
reporting is an obstacle to full disclosure and quality improvement initiatives.
Collection, analysis, and dissemination of informationThe strongest argument for moving
away from the current medical misadventure claims process is that the removal of
the requirement to find fault will mean the removal of one of the main obstacles
to creating an open, learning culture which will in turn assist in improving the
quality of health services. The removal of the ‘fear of the consequences
of disclosing mistakes and information about adverse outcomes’ should
assist in creating the culture of safe reporting so sought after by quality
improvement experts.10 However the true
benefits of creating such a culture will only be reaped if the information on
adverse outcomes (and medical injuries disclosed) is analysed and disseminated
back into the health sector to assist prevent further medical injuries.
We see the Corporation as being ideally placed under the
proposed new regime to play a central role in the collection, analysis, and
dissemination of information on medical injuries back into the health sector to
assist prevent further injuries. Despite the substantial gains promised by the
proposed amendments, concern remains that not enough attention is being paid to
this crucial matter, particularly given that firstly, the analysis and learning
from adverse events is the principle justification for moving from a system
which focuses too much attention on the actions of individuals, and secondly,
preventing injuries is a primary function of the
Corporation.11
The Bill is currently
before the Health Committee. Submissions on the Bill close on 24 September
2004. To make a submission,
see: http://www.clerk.parliament.govt.nz/Programme/Committees/Submissions/heinjury.htm
Author information:
Jonathan Coates, Senior Associate; Kate Smith, Solicitor, Buddle Findlay
Ltd, Wellington.
Correspondence:
Jonathan Coates, Senior Associate, Buddle Findlay Ltd, PO Box 2694, Wellington.
Fax: (04) 462 0432; jonathan.coates@buddlefindlay.com
References:
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