Mednotes

L1 Prof Development Introduction to Medical Law in New Zealand

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aliasesL1 Prof Development Introduction to Medical Law in New Zealand

14 min read

Overview

This lecture orientates students to the major laws enabling and governing medical practice in Aotearoa/New Zealand. It covers what counts as “the law” and where it comes from, which laws specifically affect medicine (with four key health-related Acts examined in turn), what actually gives doctors permission to treat, and, through a real fatal medication-error case, what happens legally and institutionally when medical care goes wrong.

A. What is “the Law”?

New Zealand law comes from several sources:

  • Legislation - Acts: statutes passed by Parliament. Example given: the Misuse of Drugs Act 1975, s6, which prohibits importing, producing, supplying, administering or possessing controlled drugs except as permitted by the Act or its regulations.
  • Legislation - Regulations: made under an Act (e.g. by Order in Council) rather than by Parliament directly. Example: the Misuse of Drugs (Medicinal Cannabis) Regulations 2019, which set quality standards and a licensing regime for medicinal cannabis. Parliament can pass new legislation and amend existing legislation, so students are encouraged to follow the news and check government/NGO websites (e.g. Ministry of Health, NZ Drug Foundation) for current law.
  • Common law: lines of cases decided by judges over time. English common law was imported into New Zealand via the Laws of England Act 1858, applying English law to the colony from 14 January 1840.
  • Tikanga Māori: described as the first law of Aotearoa New Zealand, pre-existing English common law.
  • Court decisions: judgments handed down by courts (case law). Example: Winston v Health New Zealand | Te Whatu Ora, Te Toka Tumai Auckland [2025] NZSC 27, a Supreme Court decision dismissing an application for leave to appeal, shown as an example of how a real case judgment is structured and cited.

Which laws impact medicine

Laws relevant to medicine exist at several levels: International (treaties, UN conventions/declarations), Constitutional (Te Tiriti o Waitangi, New Zealand Bill of Rights Act 1990), General (e.g. Crimes Act, Misuse of Drugs Act, Care of Children Act 2004, Guardianship Act 1968, Human Rights Act 1993, Oranga Tamariki Act 1989), and Health-Related (e.g. Health Act 1956, Accident Compensation Act 2001, Commerce Act 1986, Fair Trading Act 1986, Health and Disability Commissioner Act 1994, Code of Rights, Health Practitioners Competence Assurance Act 2003, Health and Disability Services (Safety) Act 2001, Health and Safety in Employment Act 1992, Medicines Act 1981, Mental Health (Compulsory Assessment and Treatment) Act 1992, Privacy Act 2020, Health Information Privacy Code 2020, Protection of Personal and Property Rights Act 1988, among others).

Four health-related Acts are highlighted for closer study, ordered from regulating institutions down to protecting individual patients:

  1. Health and Disability Services (Safety) Act 2001 - provides service standards, certification and audit of providers (targets: providers, e.g. hospitals and clinics).
  2. Health Practitioners Competence Assurance Act 2003 - ensures health practitioners are competent and fit to practise (targets: practitioners).
  3. Health and Disability Commissioner Act 1994 and the Code of Health and Disability Services Consumers’ Rights - promotes and protects the rights of health/disability consumers (targets: patients).
  4. Privacy Act 2020 and the Health Information Privacy Code - promotes and protects individual privacy (targets: patients). [Covered in more depth in a later lecture.]

Health Practitioners Competence Assurance Act 2003

Appoints specific authorities (e.g. Medical Council of New Zealand) to:

  • Set required qualifications
  • Prescribe a “scope of practice”
  • Maintain a register
  • Issue practising certificates
  • Set standards (clinical, cultural competence, ethics) - each profession’s authority issues its own standards documents (e.g. “Good Medical Practice” for doctors, a Standards Framework for oral health practitioners, a Code of Conduct for nurses)

The Act also:

  • Enables reporting of competence concerns about colleagues, with immunity for the reporter
  • Requires reporting of impairment in a colleague, with immunity for the reporter
  • Creates the Health Practitioners Disciplinary Tribunal (HPDT)

Health and Disability Commissioner Act 1994

Historical origin: a 1984 study (McIndoe, McLean, Jones and Mullins) found that women with untreated cervical carcinoma in situ (CIS) developed invasive cervical cancer at much higher rates than treated women. This was linked to the “unfortunate experiment” at National Women’s Hospital, where women with cervical CIS were left untreated as part of a study without proper consent, exposed publicly in 1987 (Coney and Bunkle, Metro). This led to the 1988 Cartwright Inquiry, which in turn led to the creation of the Health and Disability Commissioner Act 1994.

Purpose of the Act: “to promote and protect the rights of health consumers and disability services consumers, and, to that end, to facilitate the fair, simple, speedy, and efficient resolution of complaints relating to infringements of those rights.”

The Act:

  • Creates the role of Health and Disability Commissioner
  • Requires creation of the Code of Health and Disability Services Consumers’ Rights
  • Creates a complaints process

Code of Health and Disability Services Consumers’ Rights

Plain-language rights categories include: Respect, Fair Treatment, Dignity and Independence, Proper Standards, Communication, Information, “It’s Your Decision,” Support, Teaching and Research, and Complaints. People can seek help from a local advocacy service or the Health and Disability Commissioner.

Right 4 - Right to services of an appropriate standard. Every consumer has the right to services that are:

  1. Provided with reasonable care and skill
  2. Compliant with legal, professional, ethical and other relevant standards (e.g. the Medical Council’s cultural safety standard, which requires doctors to reflect on how their own views and biases affect their clinical interactions and care)
  3. Consistent with his or her needs
  4. Delivered in a manner that minimises potential harm and optimises quality of life
  5. Delivered with cooperation among providers

Permission to Treat (recap)

Much of what doctors do would be illegal or inappropriate if done by an “ordinary” person. What gives doctors permission to treat:

  • Training (e.g. medical school, University of Otago)
  • Registration (from the Medical Council)
  • Care and skill (exercised every day)
  • Informed consent (or a recognised exception)
  • All backed by an environment of safety and improvement

Of these, “care and skill” and “informed consent” connect most directly to Right 4 of the Code (standards of care and consent).

Case example: fatal metoprolol dosing error

A 73-year-old patient with a complex cardiac history (prior heart damage and heart attack) was admitted with shortness of breath, leg swelling, diarrhoea, vomiting and low blood pressure; treatment began. On day 7, a junior doctor noticed the patient was prescribed metoprolol 11.875mg/day, believed the decimal point was misplaced, meant to check with colleagues but forgot, and gave the patient 118.75mg instead. Around midday the patient’s condition deteriorated; the junior doctor did not document the findings. The patient eventually rang the call bell; other staff discovered the medication error and transferred the patient to the Coronary Care Unit, but his blood pressure could not be raised, and he died just before midnight. (Adapted from Health and Disability Commissioner decision 15HDC01664.)

The junior doctor later described questioning the dose internally but not raising it, having previously given 118.75mg on several occasions but never the smaller 11.875mg dose; described feeling unsupported, bewildered, embarrassed and confused when previously approaching the ward coordinator with questions, which discouraged him from asking for help; and described lasting remorse over the error.

This case is used to probe whether the junior doctor's care met Right 4 of the Code (reasonable care and skill, professional standards), whether fault lies with the doctor alone, and what a just outcome would look like - themes explored further in the discussion below of NZ's non-litigation response system.

C. When Things Go Wrong

Real NZ media examples given of care failures: inadequate care at an after-hours clinic, a GP privacy breach (discussing private details aloud at reception), a missed MRI finding of a teenage patient’s brain tumour leading to her death, and a patient given a drug (zoledronic acid) that worsened kidney failure because renal function was not assessed first.

When patients suffer harm, are upset/offended, or doctors are impaired or make mistakes, New Zealand does not rely on multimillion-dollar lawsuits. Instead there are parallel pathways:

  1. ACC (Accident Compensation Corporation) - care and compensation. Established via the Accident Compensation Act 1972, following a 1967 Royal Commission of Inquiry that found the tort approach (suing for negligence) inefficient and inequitable. Features: a “no-fault” scheme; if an injury is covered, the injured person cannot sue; compensates personal injury including “treatment injury” (injury caused by medical treatment that is not a necessary part or ordinary consequence of that treatment).
    • Upside: the patient does not need to prove the provider did something wrong.
    • Downside: the patient cannot sue for additional money, and may not get an explanation or apology.
  2. Complaints against providers - rights, resolution, learning. Routes include: directly to the provider; the Health and Disability Commissioner; the relevant profession’s Professional Conduct Committee (PCC) (e.g. the Medical Council’s PCC); or the Health Practitioners Disciplinary Tribunal. Complaints are checked against specific patient rights (the Code), with emphasis on resolution, learning and improvement.
    • Upside: can produce explanation, apology, and system improvement.
    • Downside: no monetary compensation to the patient.
  3. Professional Conduct Committee / Health Practitioners Disciplinary Tribunal (HPDT) - safety and misconduct. Addresses whether a provider is unsafe or guilty of professional misconduct, and whether they should lose their licence or be fined.
    • Upside: unsafe providers can be removed or restricted.
    • Downside: it is a professional “court” process with little direct role for patients’ concerns.

Real examples of each avenue were shown: recent HDC decisions (e.g. inadequate after-hours care, pharmacy dispensing errors, failings in maternity care, inadequate escalation of care in aged residential care) and HPDT case records listing practitioners, professions and charge outcomes.

Revisiting the case example

Applying this framework to the metoprolol death (HDC decision 15HDC01664):

  • Right 4 breach found: the provider did not deliver services with reasonable care and skill or in accordance with professional standards. Specific failings: incorrect medication dosage given; failure to record the patient’s deterioration; failure to document discussions with other medical professionals; failure to document the medication error once identified.
  • Recommendations: (1) the provider undertake further training on professional communication; (2) the provider give a letter of apology to the man’s family; (3) the provider’s professional council consider a formal competence review. In the outcome, the Council did not ultimately refer the case to the Health Practitioners Disciplinary Tribunal.

System-level response

The Health Quality & Safety Commission New Zealand issued Medication Alert 16 (August 2014) after three serious adverse events nationally (two fatal), all involving a prescribed metoprolol succinate dose of 11.875mg (half a 23.75mg tablet) being misread and administered as 118.75mg, attributed to confirmation bias (118.75mg being the more commonly seen dose in hospitals). Required organisational action: metoprolol doses below 23.75mg should not be prescribed for adults in a District Health Board; DHBs should agree with cardiologists whether affected patients should stop the low dose or have it increased to 23.75mg; and the recommendation should be communicated to GPs, prescribers, pharmacists and nurses.

Online resources

Ministry of Health, Medical Council of New Zealand, Health and Disability Commissioner, and Health Practitioners Disciplinary Tribunal websites were given as resources for further review of: which authority sets standards for medical practice; what concerns about a doctor’s work can/must be reported, to whom, and why; why complaints might go to the HDC; and why complaints might end up at the HPDT.

Self-test

  1. Name and briefly describe the four main sources of law referred to in this lecture.
  2. List the four health-related Acts highlighted in the lecture, in the order given, and state which group (providers, practitioners, or patients) each one primarily targets.
  3. Describe the functions that the Health Practitioners Competence Assurance Act 2003 gives to appointed authorities such as the Medical Council.
  4. What historical events led to the creation of the Health and Disability Commissioner Act 1994?
  5. State the five components of Right 4 of the Code of Health and Disability Services Consumers’ Rights.
  6. List the five things identified as giving doctors “permission to treat.”
  7. In the metoprolol case, describe what went wrong in the prescribing and administration of the medication, and identify two documentation failures.
  8. Distinguish ACC from the HDC complaints process from the Professional Conduct Committee/Health Practitioners Disciplinary Tribunal pathway, in terms of what each can and cannot deliver to the patient.
  9. Why did the metoprolol dosing errors happen nationally according to the Health Quality & Safety Commission’s alert, and what organisational action was required in response?
  10. A patient is harmed by a treatment error but the provider was not negligent, and separately a doctor makes an error that raises questions about ongoing competence. Explain which NZ pathway(s) apply to each situation and what outcome each pathway can and cannot provide.

Answers

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